1. ' SYED ZAWWAR HUSSAIN JAFERY, J.---Through this revision application, the applicant has called in question the order, dated 14-12-1999 and decree, dated 16-12-1999, passed by the learned VII Senior. Civil Judge, Karachi-South, in Suit No,236 of 1996 (Old No,714 of 1990).
2. ' The facts leading to this revision application, in brief, are that, the applicants filed a suit before this Court on 30-6-1990 being Suit No,714 of 1990 for the restoration of portion of their house under section 9 of the Specific Relief Act, mentioning therein that on 7-1990 at about 2-30 p.m. K.D.A. Staff headed by its Encroachment Director, came to their house with respondents Nos.1 and 2 with KDA police and bulldozed portion of their house. The act of respondents was criticized Kid complaint was filed with the Civil Line Police Station, but no action was preferred by the said police officials and applicants thereafter filed Constitutional Petition No,D-15 of 1990 in this Court and it was stated in the said petition that in absence of the appellants, the respondent No,1 came at the disputed portion of the plot destroyed the site and started digging the plinth. The acts of the respondents was challenged by filing Civil Suit No,36 of 1990 against the defendant No,1 and interim order in the shape of stay was passed by the said Court, but the same was not obeyed by the said respondents. The applicants preferred contempt application and also moved for inspection of the site. In pursuance of the order passed by this Court, the Nazir was appointed for the purpose of taking contrary Of the disputed portion of the plot and the summonses were also issued by this Court to the respondents. After service of the notice the respondent No,2 did not appear and contest the suit. However, respondent No,1 failed to file written statement, as such the defence was struck off vide order of this Court. The written statement was filed by the respondent No,1 who also filed application under Order 2, rule 2, C.P.C. Being C.M.A. No,2288 of 1991 who also filed C.M.A. No, 411 of 2000 for rejection of the plaint under Order 7, rule 11, C.P,C. During the pendency of the said suit, the miscellaneous applications moved by the learned counsel for the respondents were herd by this Court, and elaborate order was passed by this Court on 9-4-1993. During the pendency of the said suit in this Court, this Court ordered for filing of the affidavit-in-evidence of P.Ws., which were filed on 7-4-1996 and copies whereof were supplied to the learned counsel for defendant No, 1.
3. ' It is further urged by the learned counsel that due to the amendment in the Code .Of Civil Courts Ordinances, 1962, suits not involving more than Rs:500,000 pending in the High Court of Sindh were transferred to the subordinate Courts. Consequently, the Suit No,714 of 1990, which was renumbered as Suit No,2368 of 1996 was placed for adjudication before the Court of learned IVth Senior Civil Judge, Karachi-South. The Trial Court instead of proceeding with the evidence rejected the application under Order 7, rule 11, C.P.C. Whereas on the basis of the pleadings of the parties this Court has framed the following issues on 22-8-1993:- - "(1) Whether plaintiffs were dispossessed by force from Plot No,A-26/195, admeasuring 668 x 65 yards situated at Takri Colony, Bath Island, Karachi, by the defendant, as alleged, if so what is the effect?
(2) Whether the suit is bad for non-joinder of necessary parties?
(3) Whether the suit is maintainable in its present form?
(4) What should the decree be?"
4. Learned counsel for the applicants has, at the very outset, taken the preliminary ground that once on the application under Order 7, rule 11, C.P.C. An order is passed by discussing the whole merits and demerits of the case, whether the transferee Court being the subordinate Court of this Court can reconisder the grounds for-rejection of plaint. It is further urged by learned counsel that the learned Trial Court has deliberately ignored the order of this Court, dated 8-4-1993 although it was argued before him and the order of this Court was available in the file of learned Trial Court, but for the reasons best known to him the Trial Court has not referred the order of this Court. It, is further urged by the learned counsel that the affidavit-inevidence was already filed by the applicants in pursuance of the direction of this Court, but the learned Judge in violatin of the said direction rejected the plaint and thereby precluded the applicants from proving their case on merits. It is further. Argued by the learned counsel that the facts mentioned in the plaint constitute cause of action and this was a fit case for deciding the case on merits according to law and no valid ground was available for the rejection of plaint under Order 7, rule 11, C.P.C. And no other material or facts and law was brought on the record and Trial Court has over looked the order passed by this Court, dated 8-4-1993. The learned counsel for the applicants has relied upon the case of 1981 SCMR 878 and 1990 SCMR 163.
5. ' Mr. Ashiq Ali Abdullah, learned counsel for the respondent No,1, has raised preliminary point of maintainability of. This revision application before this Court as, according to him, other remedy by preferring appeal was available to the applicants, hence this revision application is not maintainable. He has placed reliance on the West Pakistan Civil Courts Ordinance, 1962 and also provisions of section 115, C.,P.C. And has also relied upon the cases reported in PLD A1975 Lahore 1094, 1986 SCMR 907, and PLD 1977 Karachi 747. Learned counsel has also pinpoint the object of section 9 of the Specific Relief Act, which cannot be extended to the encroachers.
6. ' Mr. Abdul Wajid Wyne, learned counsel for the respondent No,2, has adopted the same grounds raised by the learned counsel for the respondent No,1 mentioned hereinabove.
7. ' Mr. Shahenshah Hussain, learned counsel for the applicants, have submitted his arguments in rebuttal that the remedy of appeal is not available under section 9 of the Specific Relief Act, therefore, under section 115, C.P.C. The revision application can be filed by the applicants. He has cited the cases reported in PLD 1964 Peshawar 157 and PLD 1950 Peshawar 35.
8. ' I have heard the arguments of the learned counsel at length, gone through the impugned order as well as the other material placed on record by the respective counsel and have also perused the order 8-4-1993, passed by this Court.
9. ' It would be advantageous to reproduce the relevant protion of the order, dated 8-4-1993, while deciding C.M.A. No,2288 of 1991, as under:-- "In C.M.A. No,2288 of 1991 defendant No,1 prayed that suit of the plaintiffs was not maintainable in view of the various orders passed by different Courts copies of which were produced. C.M.A. No,411 of 1992 was also moved on behalf of the defendant No,1 with prayer that the suit was not maintainable and was liable to be dismissed under. Order 7, rule 11, C.P.C.
10. ' Both the applications for dismissal of suit/rejection of plaint were opposed by the plaintiff who filed counter-affidavit of Sakeel Ahmed who controverted the stand taken by the plaintiffs.
11. ' I have heard Mr. Faiq Hussain, Advocate for the plaintiffs and Mr. Anwar Hussain Pasha, Advocate for the defendants.
12. ' Learned counsel for the plaintiffs argued that for considering rejection of the plaint, only plaint was to be looked into and no other documents. Learned counsel cited the case of Ghulam Ali v.
13. Asmatullah and another (1990 SCMR 1630) where it was observed that the assertions made in the plaint, as they were, had to be seen purpose of determining whether the plaint disclosed any cause of action. It was also held that lack of proof or weakness of proof did not furnish any justification for coming to the conclusion that there is no cause of action shown in the plaint. Reliance- was also placed on the case of Riaz and others v. Razi Muhammad (1982 SCMR 741) where it was held that a plaintiff suing for possession under section 9 of the Specific Relief Act should, prove, that he had been dispossessed, that such dispossession was of immovable property, that such dispossession was without his consent and that such dispossession was otherwise than in due course of law.
14. Learned counsel for the plaintiff further argued that eviction of the plaintiffs had taken place within six months of filing of the suit, .Which was maintainable. It was further submitted that the plaintiffs had prima, facie case and balance of convenience was on them and that they would suffer irreparable loss if injunction was refused.
15. ' Mr. Anwar Hussain Pasha, learned counsel for the defendants argued that plaintiffs had filed the suit in respect of Plot. No,A-26/195 which did not exist and that the disputed plots were bearing Nos.98-B and 99. It was conceded that Suit No,1608 of 1983 was filed by the plaintiff in a Civil Court in respect of a Plot bearing No,A-26/195. It was added that Constitutional Petition No, D-15 of 1990 filed by the plaintiff No,1 was dismissed on 19-7-1990. Learned counsel for the defendant was of the view that a plaint can be rejected on the material other than that given in the plaint. In support he cited the case of Ghulam Rasool v. Mst. Hamida Begum and others (PLD 1992 Lahore 363): Reliance was also placed on the case of Mian Muhammad. Akram and others v. Muhammad Rafi (1989 CLC 15) and Muhammad Akhtar, etc. v. Abdul Hadi etc. (1981 SCMR 878).
16. ' The consistent view taken by this Court in various cases has been that while considering on application for rejection of plaint, it is to be assumed that the allegations contained in the plaint are true and correct and the plaint is to be rejected only if the Court reaches the conclusion that even if all the averments made in the plaint are taken to be correct the plaintiff will not be entitled to the relief claimed. Such view was taken in the cases of Syed Khadim Ali Shah v. S.M. Zia and others (PLD 1981 Kar. 604), Seven Stars Goods Transport Co. (Registered) v. Administrator KMC (PLD 1976 Kar. 21) and Nizar Ali v. Noorabad Cooperative Housing Society Ltd. (PLD 1987 Kar. 676). In case of Abdul Rahim v. KDA (1988 CLC 1207), a learned single Judge of this Court took view that a Court cannot reject the plaint on the basis of pleas raised by the defendant in his defence or in his application under Order 7, rule 11 of C.P.C. In the case of Pahloomal Motiram v. Abdul Quddus Behari and . Others (PLD 1971 Kar. 250) it was held that in asking the Court to reject a plaint under Order 7, rule 11 of C.P.C., the defendant must be taken to admit for the sake of argument that the allegations of the plaintiff made in the plaint are true in manner, and form. Even the Supreme Court of Pakistan has held in the case of Ghulam Ali (1990 SCMR 1630) that only assertions made in the plaint had to be seen for the purpose of determining whether the plaint disclosed any cause of action and that lack of proof of weakness of proof did not furnish any justification for coming to the conclusion that there was no cause of action shown in the . Plaint. This authority is entitled to great weight and in presence of such an authority te view taken Mahe cases of Mian Muhammad Akr'am (1989 CltC 15) and Ghulam Rasool (PLD 1992 Lahore-363), cannot be preferred. In the case of Muhammad Akhtar, etc. v. Abdul 'Nadi etc. (1981 SCMR 878), it was held that Order 7, rule 11, C.P.C. Is not exhaustive of all situations in which a plaint can be rejected or a suit can be dismissed summarily. If the plaintiffs have cause of action in terms of the case of Ghulam Ali (1990 SCMR 1630) their plaint cannot be rejected, even if broader view is taken of the provisions contained in Order 7, rule 11, of C.P.C. In the instant case, the averments made in the plaint if true would give cause of action to the plaintiffs for maintaining the suit under section 9 of the Specific Relief Act. In presence of the allegations in the plaint, no case is made out for rejection of the same. Consequently C.M.A. No,2288 of 1991 stand dismissed."
17. From the perusal of the above order, it reveals that the lower Court was supposed to proceed with the case from the stage, from where it was transferred by the superior Court and once this Court had dismissed the application under Order 7, rule 11, the Trial Court was not competent to re-hear the matter on the same grounds. In doing so, the Trial Court has nullified the order of this Court by exceeding its jurisdiction. While deciding the C.M.A. 2288 of 1991, this Court had dilated the merits and merits of the case and also relied upon the several authorities of the Hon'ble Supreme Court, such the cases of Muhammad Akhtar, etc., reported in 1981 SCMR 878, Ghulam Ali reported in 1990 SCMR 1630 and other authorities of Lahore jurisdiction as well as from the jurisdiction of this Court, several authorities were discussed in the said order. This Court had already discussed the merits of the case in respect of the rights of the parties. There was no occasion for the Trial Court to pass further order in respect of the same point, which was already resolved by this Court by detailed order. I ant of the view that there is force in the arguments urged by the learned counsel for the applicants and the order of the Trial Court, dated 14-12-1999 and decree, dated 16-12-1999 passed by the learned IVth Senior Civil Judge, Karachi-South in Suit No,2368 of 1996 (Old No,714 of 1990) are set aside and the Trial Court is directed .To proceed with the matter from the stage when it was transferred by this Court on the ground of pecuniary jurisdiction. The Trial-Court is also directed to proceed afresh according to law and decide the same on merits.
18. ' This revision application stands allowed in above terms.