NISHAN ALI vs SHER MUHAMMAD and 3 others

ORDER

' Nishan Ali, the appellant/plaintiff, through the filing of the present, appeal has called in question order dated 14-1-2003, whereby the learned First Appellate Court rejected appellant's plaint under Order VII, rul 1 11, C.P.C. And the application for the grant of temporary injunction.

2. Briefly stated the facts of the case are that the appellant filed asuit for declaration, against the respondents, thereby challenging certain mutations, together with an application for grant of temporary injunction. The respondents resisted the both by way of filing the written statement and written reply to the injunction application. The learned trial Court accepted the application for the grant of temporary injunction, framed the necessary issues and adjourned the case for recording the evidence of the parties, vide order dated 7-11-2002. The respondents filed an appeal, against the said order, and the learned Additional District Judge not only dismissed the application for the grant of temporary injunction but also rejected the plaint, vide order dated 14-1-2003, hence the presence to appeal.

3. Learned counsel for the appellant has contended that although the plaint discloses cause of action, yet the learned Additional District Judge has committed legal errors in rejecting the plaint as well as the application for the grant of temporary injunction. Conversely, the learned counsel for the respondents, while referring to para. 7 of the impugned judgment, has submitted that the plaint does not disclose any cause of action, thus, the learned Additional District Judge, has rightly passed the impugned order.

4. Admittedly, the respondents filed an appeal against order dated 7-11-2002, whereby appellant's application for the grant of temporary injunction was allowed and the learned Appellate Court, while hearing the appeal against the interim order, rejected the plaint in purported exercise of power under Order VII, rule 11, C.P.C. After hearing the learned counsel of the parties and examining the record of the case, I find that the real question, involved in the present case, is as to whether the First Appellate Court was competent in law to reject the plaint, while hearing the appeal against grant of temporary injunction by the learned trial Court. To my mind, the learned Appellate Court could not reject the plaint while hearing the appeal against interim order, as he was not seized of the main suit. The scope of appeal before the learned Appellate Court was as to whether the appellant was entitled for the temporary injunction, as prayed for by him in his injunction application and the B impugned order dated 7-11-2002 was in accordance with law or not. The learned Appellate Court could not have rejected the plaint, as at that point of time the lis was pending before the learned Civil Judge, who, in his discretion, had already framed issues and set down the case for recording the evidence of the parties. This Court in a case reported as Zafar Ahmed Ausari v. Auqaf Department through Chief Administrator, Punjab, Lahore and 4 others (1996 CLC 892), while dilating upon the similar controversy, has held that the First Appellate Court was not legally competent to reject the plaint while hearing the appeal against the grant of temporary injunction by the learned trial Court and the judgment of the Appellate Court was set aside on the ground that subject-Matter of appeal before the First Appellate Court was only to grant or refusal of temporary injunction. It is settled law that the Court is not justified to reject the plaint or dismiss the suit while dismissing the injunction application. If any case-law is needed, judgments reported as Abdul Saleem and others v. Muhammad Sharif (1989 M LD 332), Mst. Zainab Jan v. Abdul Rashid (1981 CLC 1012), Mst. Khurshid Begumand 7 others v. Inam Rabbani and another (1979 CLC 570) and Muhammad Hussain and 54 others v. Federal Government, Pakistan through Secretary Communication and Works and 2 others (1980 CLC 1656) can be referred.

5. In the above perspective, I have examined the impugned order and find that the learned Additional District Judge, while rendering it, has committed illegality, thus, the impugned order cannot be sustained, hence, I am inclined to set aside the same.

6. Upshot of the above discussion is that the present appeal is 51lowed and the impugned order dated 14-1-2003 is set aside with no order as to costs. Resultantly, respondent' appeal shall be deemed to be pending before the learned Additional District Judge, who shall decide the same, afresh, after hearing the parties and of course in accordance with law.