1. ' HAMID ALI MIRZA, J.---This is a civil appeal directed against the judgment dated 8-6-1999 of the Lahore High Court passed in Civil Revision No, 1166 of 1999.
2. ' The brief facts of the case are that appellant Ghafoor Bux filed Suit No, 27/1 of 1991 in the Court of Civil Judge, Lahore against respondent Haji Muhammad Sultan and four others stating therein that property bearing No, 64-R-110, Anarkali, Lahore was allotted to him by the Rehabilitation Department vide order dated 19-8-1958 and thereafter he started partnership business in the name and style of 'Chaman Cloth House'. Respondent Haji Muhammad Sultan, the real brother of the appellant, joined him as a partner in the firm alongwith other partners as per partnership deed executed on 4-7-1958, but the shop comprising the building mentioned above never formed part of the assets of the firm and the appellant/plaintiff continued to retain the title as allottee thereof and it was only the use of the premises that was allowed by the appellant by virtue of clause 2 of the aforesaid partnership deed and the said partnership was dissolved on 31-12-1969. During the settlement operation, the appellant/plaintiff and other occupants of the aforesaid building submitted an application on 18-2-1959 for transfer of respective shops/portions in their respective possessions and similar applications were also made on 19-10-1959 before the Additional Settlement/Rehabilitation Commissioner-H, Lahore Division, for division of the property and for transfer of respective shops, however, the said building comprising of shops was declared to be a big mansion, therefore, the Settlement Department proceeded to auction the same but the occupants/allottees made representations against the auction, but they remained unsuccessful, consequently, they filed a revision petition on 24-11-1959 before the Additional Settlement Commissioner. Ultimately, the said property was removed from the auction list and was approved for disposal through negotiations with person in occupation of various shops including the appellant/plaintiff. Respondent Haji Muhammad Sultan, the brother of the appellant-plaintiff, who was a commerce graduate and partner of the firm, was asked to pursue the proceedings for the transfer of the property in the name of the appellant-plaintiff. The appellant alongwith others made initial offer to purchase the property on the basis of 50 years' rent, which offer was increased to 55 years' rent on 27-8-1960 and then it was raised to 57 years' rent, which offer was accepted by the Settlement Authorities. Respondent Haji Muhammad Sultan, however, left the partnership business with consent and started his own business, but the appellant and the said respondent continued to live in the same residential house. Consequently, the appellant-plaintiff had confidence in his brother respondent Haji Muhammad Sultan, therefore, the said respondent continued with pursuing the case for transfer of the sops and got the needful done. In the year 1980, the appellant received a notice from the said respondent wherein he informed him that the said shop had been transferred to him by the Settlement Department in the year 1971 for which the appellant-plaintiff asked for the supply of copies, which were sent to him, however, the appellant represented against the transfer of the said shop, on which the Additional Settlement Commissioner called for a report on 3-2-1981 and but his representation was rejected on the ground that PTC had been issued in favour of the respondent. However, when the file was inspected it was revealed that the said respondent had committed forgery and made misrepresentation in obtaining the PTC in respect of the said shop, the particulars of which are stated in the plaint. In the circumstances, the appellant made another application to the Chief Settlement Commissioner for holding an enquiry, on which a report was called for, but ultimately, as per order dated 15-7-1981, no further action was taken on account of issuance of PTC in favour of the said respondent. The appellant thereafter challenged the order dated 15-7-1981 in Writ Petition No, 439-R of 1981 in the Lahore High Court, which was disposed of on 29-1-1991 observing that after the repeal of the settlement laws and issuance of PTD, the question of fraud could only be gone into by a Civil Court and the appellant was advised to seek his remedy, if available to him under the law, by filing a suit in the Civil Court of general jurisdiction, which, if filed, shall be disposed of in accordance with law. - ' However, the said respondent, after the service of notice upon the appellant-plaintiff in 1980, filed an eviction application against him and other tenants, which ejectment application was accepted subject to the condition that the order of ejectment shall not be executed till the decision on the question of title in the writ petition.
3. ' In the circumstances, the appellant-plaintiff filed a suit for declaration to the effect that the PTC dated 7-10-1971 issued in favour of respondent No,1 was procured through fraud, mispresentation and concealment of facts, therefore, it was illegal, ultra vires and be cancelled and further that the appellant-plaintiff was entitled to the transfer of the abovesaid shop and for mandatory injunction directing respondents 3 and 4 to issue the title document in favour of the appellant-plaintiff and perpetual injunction restraining respondent No,1 from interfering with the possession of the plaintiff-appellant in respect of the shop in question. Respondent No,1 filed an application under Order VII, Rule 11, C.P.C. For rejection of the plaint, which application was dismissed on 8-6-1991 by the learned Senior Civil Judge and the same was challenged in Civil Revision No, 1166 of 1991 before the Lahore High Court which revision application was allowed on 8-6-1999 by the learned Judge in Chamber and the plaint was rejected on the ground that the suit filed by the appellant/plaintiff was hit by the provisions of section 11, C.P.C. And further that the suit was ex facie barred by time.
4. The appellant-plaintiff has filed this appeal challenging the order of the learned Judge of the High Court.
5. ' We have heard the learned counsel for the parties and perused the record.
6. ' The learned Single Judge of the Lahore High Court in paragraphs 9 and 10 of the judgment has observed as follows:-- "9. With the repeal of the Evacuee Laws the intention of the Legislature is quite clear. Barring some exceptional cases, the fresh litigative channels in respect of the Evacuee properties have to be discouraged. If unnecessary vent is permitted, the very object of the repeal of the Evacuee Laws would be defeated. The impugned order passed by the learned Civil Court suffered from jurisdictional defect, material illegality and irregularity causing the failure of justice in this case. The learned Civil Court ought not to have permitted the respondent No,1 to reagiate the matter after he had lost the same on merits from this Court substantially on the same issues. The judgment by this Court in Writ Petition No, 439-R of 1981 does not spell out any permission having been granted to respondent No,1 to file the civil suit so as to re-open the past and closed transaction.
7. "10 For the foregoing reasons, the impugned order dated 8-6-1991 passed by the learned Civil Judge Ist Class is set aside. The application of the petitioner under Order VII, Rule 11, C.P.C. Is accepted. Resultantly, the plaint filed by respondent No,1 stands rejected."
8. ' The application for rejection of plaint under Order VII, Rule 11, C.P.C. Was filed by respondent No,1 on the grounds (i) that the suit was hit by the principle of res judicata as order of transfer was challenged in Writ Petition No, 439-R of 1981 which was dismissed, (ii) that the suit was barred under sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, (iii) that Abdul Hameed Khan, a partner of the appellant had challenged the transfer of shop by filing a revision petition ' before the Chief Settlement Commissioner, and (iv) that the order of eviction passed by the Rent Controller was barred under section 15(7) of the Punjab Urban Rent Restriction Ordinance.
9. ' The learned Single Judge of Lahore High Court allowed the application under Order VII, Rule 11, C.P.C. On the grounds that the very object of the repeal of evacuee laws would be defeated and that the order of the learned Civil Court suffered from jurisdictional defect, material irregularity and illegality causing failure of justice and that the respondent could not be permitted to reagitate the matter after he had lost the same on merits.
10. ' Rule 11 of Order 7, C.P.C. Runs as follows:- "11 Rejection of plaint.---The plaint shall be rejected in the following cases:--
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
11. ' The impugned order would show that the learned Single Judge has rejected the plaint on the grounds other than spelt out under Rule 11 of Order VII, C.P.C., considering that no positive prohibition of any legal provision has been mentioned. In Writ Petition No, 439-R of 1981 the permanent transfer order dated 7-10-1971 in respect of the property in dispute was challenged by the appellant and the order passed in the said petition would show that the learned Single Judge of the Lahore High Court held that as in the case in hand at no time proceedings were pending regarding the transfer of property in dispute as provided by subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act No, XIV of 1975, therefore, the Settlement Commissioner Industries dismissed the revision vide order dated 15-7-1981 as the Settlement Commissioner had ceased to have jurisdiction to cancel PTD on the ground of fraud and misrepresentation. The order dated 15-7-1981 of the Settlement Commissioner being within the four-corners of law was not interfered with by the High Court in its Constitutional jurisdiction, and in the said order no finding with regard to fraud and misrepresentation was given and it was observed that appellant may if so advised seek remedy if available to him under the law by filing a suit in the Civil Court of general jurisdiction, which, if filed, shall be disposed of in accordance with law. It would not be out of place to state that after the Repealing Act, 1975 came into force, the Settlement Authorities ceased to have jurisdiction with regard to cancellation of PTC on the ground of fraud and misrepresentation, therefore, the Settlement Commissioner and learned Judge of Lahore High Court dismissed the revision application and writ petition respectively, consequently, matter could not be said to have been heard and finally decided on merits by the learned Single Judge in the above petition. It will not be out of place to mention that the Settlement Commissioner Industries Punjab, Lahore, in his order dated 15-7-1981, observed:-- ' "It appears from record that the applications filed at the initial stage by various occupants of the subject property, included your (appellant) name and signature as one of co-applicants.
12. Subsequently, an application dated 'NIL' received on 30-8-1960 also shows that you (appellant) were one of the applicants for the subject property but your (appellant) signature had been scored out. This application also contains signatures of Muhammad Sultan above your (appellant) typed name.
13. '"In the subsequent applications dated 8-9-1960 and 26-9-1960, Muhammad Sultan signed as a co-applicant 'For: Chaman Cloth House' but subsequently the word 'for' before the words 'Chaman Cloth House' on the said application appears to have been scored out."
14. ' The above observations of the Settlement Commissioner with regard to fraud and forgery were not considered by him so also by the learned Single Judge of the High Court while disposing of the revision application as well as the Constitutional petition because the said authorities could not have interfered with as no case with regard to the transfer of property in dispute was pending when the Repealing Act No,XIV of 1975 came into force, therefore, the learned Single Judge in the abovesaid Constitutional petition did not give any finding on the said pleas agitated by the appellant/plaintiff but he suggested the remedy of filing a suit as mentioned above. The Settlement Authorities have observed that because of the Repealing Act of 1975 they had become functus officio and consequently not competent to cancel PTC on the alleged grounds of fraud and misrepresentation.
15. ' In the circumstances, the appellant having no remedy available before the Settlement Authorities, filed the civil suit before the Senior Civil Judge where an application under Rule 11 of Order VII, C.P.C.
16. Was moved by respondent No,1 for rejection of the plaint, which was rejected, but in revision the learned Single Judge of the Lahore High Court, as per the impugned order, allowed the said application and rejected the plaint on the grounds mentioned above, though the plaint could not have been rejected on the aforesaid grounds under the law. Mere fact that the evacuee laws were repealed or that the learned Single Judge dismissed Writ Petition No, 439-R of 1981 on the legal ground without finally deciding the pleas raised before him leaving the same open to be decided by Civil Court, would itself be no ground for rejection of the plaint as the same are not envisaged under Rule 11 of Order VII, C.P.C. It is a settled law that a question of fraud or misrepresentation unless specifically barred under the law could only be gone B into by a Civil Court of general jurisdiction. Reference may be made to Sultan Hasan Khan v. Nasim Jehan (1994 SCM R 150). It may further be observed that the learned Single Judge of the High Court has held that the suit was time-barred but nothing has been said as to which Article of Limitation Act would be attracted so as to hold the suit of the appellant to be barred by time and in absence of same, it could not be held to be time- barred. Consequently, the impugned order is set aside and this appeal is allowed. However, the parties would be at liberty to raise pleas as per pleadings before the trial Court, which would be considered on merits and the suit would be disposed of in accordance with law.