' MUHAMMAD MOOSA K. LEGHARI, J.---Through this petition the petitioners have called in question orders, dated 4-12-1995 passed by the learned III-Additional District Judge, Larkana in Civil Revision No, 16 of 1992 whereby the learned revisional Court set aside the orders passed by the learned trial Court and rejected the plaint of the plaintiff.
1. The facts as briefly stated in the petition are that the petitioners filed a suit for possession, perpetual, mandatory injunction and compensation in respect of C.S. No,164/2 Ward B at Ratodero in the Court of III-Senior Civil Judge, Larkana being F.C. Suit No, 21 of 1989. The defendants/ respondents Nos. 2 and 3 filed their written statements before the trial Court. The trial Court framed issues on 9-10-1990 and the suit was fixed for trial. Subsequently on 10-3-1991 the defendants/private respondents moved application under Order 7, Rule 11, C.P.C. For rejection of Plaint. After perusal of the plaint and hearing the parties learned, Trial Court dismissed the application moved by the defendants/private respondents under Order 7, Rule 11, C.P.C. Vide order, dated 18-10-1992. The respondents/defendants challenged the orders by way of filing a revision application which was registered as Civil it Revision No, 16 of 1992. After hearing the parties' the said revision application was allowed in the terms as stated above whereby the plaint of the plaintiff was directed to be rejected.
2. Being aggrieved of the said revisional orders the petitioners have filed this Constitution petition praying therein to call for Record and Proceedings of. F.C. Suit No, 21 of 1989 and revision petition and to set aside the order of respondent No,1 whereby, the plaint of the plaintiff was rejected.
3. We have heard learned counsel for the parties. Learned counsel for the petitioners has contended that so far as the scope of Order 7, Rule 11, C.P.C. Is concerned, the trial Court has only to see the averments made in the plaint. He submits that the order passed by the learned trial Court was absolutely correct and did not warrant any interference in the revisional jurisdiction. Learned counsel further contends that the ground of res judicata taken by the respondents/defendants was not justified as the plaintiffs/petitioners were not required to challenge the judgment passed in the previous suit since there was nothing against the present petitioners/plaintiffs, therefore, they have chosen not to file any appeal. Learned counsel in support of his above contentions has relied upon the following case-law: ' PLD 1963 SC 265, PLD 1975 Kar. 26, PLD 1959 Dacca 316, 1973 SCMR 236, PLD 1986 Kar. 94, PLD 1987 SC 145; 1988 CLC 436 (Lah.), PLD 1992 Pesh. 18, 1993 MLD 177, 1997 MLD 2745, 1999 MLD 2844, PLD 1973 Lah.
463. PLD 1993 Kar. 207, PLD 1984 Kar. 34, 1989 CLC 865, 1987 CLC 1746, 1991 SCMR 1944, 1992 SCMR 1199, 1993 CLC 2523 and 1994 SCMR 826.
4. On the other hand Mr. Moohanlal K. Makhijani learned counsel appearing for respondents Nos.2 and 3 has supported the order passed by the learned 3rd Additional District Judge, Larkana in Civil Revision No,16 of 1992. He submits that previously Suit No,11 of 1981 was filed by the respondent No,2 against the present petitioners Issue No,1 framed in the said suit which was in fact in respect of determination of the ownership of Topandas father of the defendant and was in respect of the same property which is involved in the present suit. He submits that the parties are the same, the property is the same and the material issue with regard to ownership is Same. Ownership of property has already been decided in previous suit, therefore, the suit -filed by the petitioners/plaintiffs was hit by the principle of res judicata and, therefore, the plaint was rightly rejected in support of his above contention, learned counsel has relied upon the following case- law: ' PLD 1967 Dacca 190, PLD 1973 Lah. 878, PLD 1976 Lah. 396, PLD 1977 SC 220, PLD 1977 Kar. 747, 1994 MLD 126, 1994 CLC 1248 and 1994 SCMR 826.
5. We have examined the case-law submitted by learned counsel for the parties and have also minutely examined orders passed by the learned trial Court as well as the order passed by the learned revisional Court.
6. Honourable Supreme Court in the case Muhammad Altaf and others 2001 SCMR 953 was pleased to hold that the averments contained in the plaint were presumed to be correct for the purpose of application under Order 7, Rule 11, C.P.C.
7. In the case reported in 2000 SCMR 53, it was held by the apex Court that clause (d) of Order 7, Rule 11, C.P.C. Was applicable where the suit appeared to be prima facie barred by any law from perusal of statement in the plaint and no further enquiry was needed.
8. So far as the contentions raised by the learned counsel for the respondents relating to the applicability of the rule of res judicata we deem it appropriate to reproduce here under the principles laid down by the Honourable. Supreme Court in the case Province of Punjab through Chief Secretary v. Malik Ibrahim & Sons and another 2000 SCMR 1172:---
(1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
(2) The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim.
(3) The parties as aforesaid must have litigated under the same title in the former suit.
(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.
(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.
9. We have gone through the case-law cited by both the learned counsel. Having due regard for the law laid down by the Honourable superior Courts, we feel that the law cited by the learned counsel for the parties is distinguishable on the facts and the circumstances of the present case.
We, therefore, do not-feel it necessary to discuss each and every case cited on behalf of the parties.
10. However, we deem it appropriate to refer herein authority 1994 SCMR 826 (Jeewan and 7 others v. Federation of Pakistan) which has been relied upon by both the learned counsel. In the said citation Honourable Supreme Court has clearly stated that the Court while taking action for rejection of plaint under Order 7, Rule 11, C.P.C. Cannot take into consideration pleas raised by the defendants in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence. In this authority Honourable Supreme Court was pleased to allow the appeal set aside the orders of the lower Court rejecting the plaint under Order 7, Rule 11, C.P.C. The case was accordingly remanded to the trial Court.
11. Adverting to the facts of the case in hand, we find that the previous suit being F.C. Suit No,11 of 1981 was filed by respondent No,2 against the- petitioners in which the following prayer was made:
(a) Declaration that the suit premises was gifted to the plaintiff and she is true and legal owner of the suit property.
(b) Restraining the defendants from dispossessing the plaintiff from suit premises bearing C.S. No, 164/2, Ward 'B' Ratodero, illegally by coercive methods or threatening the plaintiff for the same purpose.
(c) Award costs of the suit.
(d) Award any other relief to which the plaintiff is entitled.
' From perusal of the judgment passed in the said suit we find Issue No,1 as under: ' Whether the suit property bearing C.S. No, 164/2, Ward 'B', Ratodero is the property of Topandas father of defendants Ramchand and Lachhmandas has no concern with the suit property as Lachhmandas was in India even much more before the partition of sub-continent?
'It is correct that the previous suit as well as the present suit are filed in respect of the same property viz. C.S. No, 164/2, Ward B Ratodero. It is also correct that the previous suit was between the respondent No,2 and the petitioners. However, the present suit has been filed by petitioners/ plaintiffs against Shrimati Lachemi Bai Sudhonomal as defendants Nos.l and 2 respectively. In the previous suit the relief was claimed to the extent of declaration that the suit premises was gifted to the plaintiff and she is true and lawful owner of the suit property. However, in the judgment passed in the said suit the said prayer to the extent that Shrimati Lachemi Bai was gifted the suit proper'y and that she was true and legal owner of the suit property was declined. In the present suit the petitioners have not sought any declaration with regard to their ownership. Therefore, we do not think that the findings reached by the learned trial. Court in Issue No,1 decided in Suit No, 11 of 1981 will ipso facto lead to the conclusion that the suit was hit by the principles of res judicta without recording the evidence while deciding an application moved under Order 7, Rule 11, C.P.C.
12. Keeping in view the above rule laid down by the Honourable Supreme Court if the facts of the case in hand are looked into we feel that in order to ascertain as to whether the principles of res judicata will be attracted in this case the matter needs further enquiry.
13. We have minutely examined the order passed by the learned III-Additional District Judge, Larkana and we feel that the learned Judge has appraised and discussed the evidence in the case and considered extraneous material which was uncalled for as the scope of revision under section 115 is very limited. Having reached the irresistible conclusion that the learned rev isional Court travelled beyond the jurisdiction, we set aside the orders passed by two Courts below. Resultantly the petition is allowed. The application under Order 7, Rule 11, C.P.C. Will be deemed to be pending before the learned trial Court and will be decided after recording the evidence and hearing the parties. Since this is quite old matter, we direct learned trial Court to decide this application within 30 days after the receipt of this order. The parties are in attendance and are accordingly directed to appear before the learned trial Court on 6th June, 2001.