' A declaratory suit with consequential relief of injunction was filed by the petitioner that he was allottee of Quarter No,5/48-Q Type Mandi Town Bhakkar, in which an application under Order VII, rule 11, C.P.C. For rejection of the plaint was made by respondent No,3. While disposing of the said application, the learned trial Judge proceeded to dismiss the suit on 19-12-2002. Appeal preferred thereagainst by the petitioner has been dismissed by the learned Additional District Judge-I, Bhakkar on 28-2-2003. This is revision petition there against.
2. At the motion stage of hearing of this petition, respondent No,3 is represented through his counsel whereas the learned Assistant Advocate-General has also entered appearance for rest of the respondents. The learned counsel for the parties have been heard and material on the record perused with their assistance.
3. In the plaint there was a specific assertion that the quarter in dispute had been allotted to the petitioner on 9-8-2001 and that allotment made in favour of respondent No,3 on 4-4-2002 was illegal having been made in presence of the existing allotment thereof in favour of the petitioner.
No written statement had yet been filed by any of the respondents/defendants. The assertion of the petitioner had yet to be admitted or controverted by the official respondents. That stage had not yet reached nor there was any application by them for the rejection of the plaint.. Till then application under Order VII, rule 11, C.P.C. Had been filed by respondent No,3 only. Bare assertion made by respondent No,3. In his application (for rejection of the plaint) was accepted as correct by the trial Court who by taking account of the previous litigation proceeded to hold that there was no valid allotment order in favour of the petitioner and thus, was non-suited for lack of cause of action and locus standi in the matter. Surprisingly the suit was dismissed at the initial stage. In appeal though the learned Appellate Court realized the mistake of the trial Court (of dismissing the suit) but converted the said order into rejection of the plaint. It also, however, proceeded to embark upon the discussion about disputed question& of fact. Such an exercise was not warranted at this stage when the official respondents, who were possessed of the relevant record had not, yet come forward with their stance. As mentioned above, there was no application under Order VII, rule 11, C.P.CY made by the official respondents that the allotment of the quarter so claimed by the petitioner/plaintiff was indeed non-existent. Taking the contents of the plaint as they were prima facie there was a cause of action and locus standi to file suit on the basis of the allotment claimed by him. Unless such assertion had been controverted by the official respondents, no reliance on any other material could be placed by the Court In the circumstances neither the suit could be dismissed (as was done by the trial Court) at that stage nor the plaint could be rejected as was done by the First Appellate Court, in view of Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCM R 826. In this view of the matter, the order of the trial Court and judgment of the First Appellate Court are not sustainable in law and are set aside.
' As a result of the above, the trial Court shall proceed with the suit in accordance with law. It is however, observed that in case an application is made by the official respondents under Order VII, rule 11, C.P.C. This order will not operate as an impediment for the trial Court to dispose of the same in accordance with law. This petition is accordingly accepted with the above observation.