MIAN SAQIB NISAR, J. - Brief facts of the case are, that the petitioner filed a suit for declaration claiming that-he is real and actual owner of the suit property measuring 129 kanals, 7 marlas (fully described in the plaint), whereas in the sale-deed, half share of the suit property show to be in the name of respondent; this transaction in fact is a Benami transaction. Along with the suit, an application for the grant of temporary injunction was also moved. Learned Trial Court dismissed this application, against which the petitioner filed an appeal. Learned Court in appeal while disposing of the matter, not only upheld the order of the Trial Court in dismissing the interim application of the petitioner, rather also rejected the plaint under the provisions of Order VII, Rule 11, CPC stating that in paragraphs Nos. 1, 2 and 3, of the plaint, petitioner had admitted that the respondent is a co-owner, hence this petition.
2. Learned counsel for the petitioner had forcefully argued that the Appellate Court in fact has fallen in a misconception of understanding the case of the petitioner for the reason that the petitioner was claiming declaration to the effect that he is exclusive and true owner of the property in dispute, whereas that of the respondent as Benamidar. Obviously, in such situation statement in the plaint has to be that the property stand in the name of respondent as per record, showing him to be the co-owner x>f the said property, this being the question of dispute between the parties, plaint could not be rejected, particularly when issues in this case have already been framed. The real dispute is whether the petitioner is true and actual owner and the respondent is Benamidar, or not.
3. Learned counsel for the respondent has stated that the. Property in question was purchased in equal shares by both the parties in the year 1968; there were subsequent transactions qua this property as well, thus right from the year of purchase, the petitioner had always acknowledged the respondent to be a co-owner, consequently, all of sudden, in the year 1987, his claim that respondent is Benamidar, is absolutely false and frivolous. It is further contended that the Court has ample powers to reject the plaint, if the same does not disclose cause of action. In this behalf, reliance has been placed on 1981 SCMK 878.
4. I have heard learned counsel for the parties. As a matter of fact, an application for the grant of temporary injunction moved by the petitioner was dismissed which order was challenged when the Appellate Court besides deciding the real question of interim relief, also rejected the plaint for non-disclosure of cause of action. The prime reason mentioned in the impugned order is that in certain paragraphs of the plaint, mentioned above, the petitioner himself has admitted the respondent to be a co-owner. Obviously in cases which involve the question of Benami transaction, the record would envisages Benamidar as a owner or co-owner of the disputed \ property and it is this fact which the petitioner impugns, which fact has to be proved at the time of trial. This being a question of fact, petitioner, I could not be dislodged, simply for the reason that as per averments in the k plaint, it is stated and admitted that the respondent is one of the co-owner we may be pertinent to state here that in order to prove the transaction being Banami in nature, the matter could only be resolved if necessary issues had been named and the parties were given adequate opportunity of proving their controversy. The judgment of the Honourable Supreme Court, supra has no application to the facts and circumstances of the instant case, because it is settled law by now, that in order to reject the plaint on the basis of lack of cause of action, all facts stated in the plaint, should be assumed to be correct and no date or material provided by the defence should be taken into account. Applying the said principle, if the facts given in the plaint are taken truthfully mentioned, the plaint does disclose a cause in favour of the petitioner, and could not be summarily rejected.
5. In the light of above, the impugned judgment rejecting the plaint of the petitioner is not in consonance with the law and the learned Appellate Court has erred in exercising its jurisdiction which judgment cannot be sustained, consequently, this petition is allowed; the judgment of the Court in appeal is set aside. However, as regard to the question of interim stay order is concerned, as both the Courts below have not granted the petitioner interim relief; I am not inclined to interfere in the matter, suffice it to say that-the stay claimed by the petitioner is with regard to the alienation of the suit property, which otherwise is covered by the principle of lis pendens.