ALI NAWAZ vs AZIZULLAH through Legal Heirs

1. ' NADEEM AZHAR SIDDIQI, J.---The applicant has challenged order dated 20-11-2002 passed by the learned II Civil Judge and Judicial Magistrate Panoakil in Suit No,Nil of 2002 and order dated 24-12- 2005 passed by learned District and Sessions Judge Sukkur in Civil Appeal No,78 of 2002.

2. ' The facts necessary for the disposal of the above revision are that the applicant has filed suit for recovery of Rs,30,000 against the respondents pleading therein that he is the owner of the garden of dates which he had given on lease to the father of the respondents in consideration of Rs,30,000, who even after taking all fruit failed to pay the amount and filed insolvency petition bearing No,26/2001 in which he had admitted an amount of Rs,17,500. The insolvency petition was dismissed on 15-2-2002 and in June 2002 he expired leaving the above legal heirs. The suit was filed and the learned Civil Judge without admitting the plaint rejected the same vide order dated 20-11-2002.

3. The applicant challenged the order by way of filing Civil Appeal No,78 of 2002 which was dismissed on 24-12-2005. Hence the revision.

4. ' The learned counsel for the applicant submits that both the Courts below have wrongly assumed jurisdiction, which was not vested under them. He submits that plaint can only be rejected if come within the mischief of Order VII, Rule 11, C.P.C. He further submits that for rejecting the plaint the whole contents of the plaint have to be considered and for that purpose the contents of the plaint are taken to be true and the matter which require evidence cannot be considered. He further submits that factual investigation cannot be made while rejecting the plaint.

5. ' None was present on behalf of the respondents in spite of service.

6. ' I have heard learned counsel for the applicant and perused the record made available before me.

7. A plaint under Order VII, Rule 11, C.P.C. Can be rejected, if came within the mischief of Order VII, rule 11, C.P.C. And for rejecting the plaint, the whole contents of the plaint are to be seen and the contents of plaint has to be treated as true on its face value. The factual inquiry cannot be undergone and the matter, which requires evidence, cannot be considered. The trial Court has rejected the plaint merely for the reason that applicant has not produced documents in support of his case. The plaint cannot be rejected for want of evidence or prove in support of claim in the plaint.

8. ' The Appellate Court has also dismissed the plaint on the technical ground that sufficient particulars of the land and the transaction was not disclosed in the plaint. The plaint cannot be rejected on the basis of vagueness in pleadings or for want of better particulars, and instead of maintaining the order of rejection of the plaint thus the Appellate Court should provide an opportunity to the Applicant to amend the plaint under Order VI, Rule 17, C.P.C.

9. ' I have gone through the contents of the plaint and found that the same discloses a cause of action. The applicant states in the plaint that deceased owe amount to him and this is a factual controversy require evidence. The cause of action means giving rise for a claim or right of D the plaintiff against the defendant, enable a Court give its decision. The question as to whether the applicant will be able to prove the case at the trial is irrelevant and cannot be considered for rejecting the plaint. Normally a concurrent finding of fact cannot be interfered in the revisional jurisdiction. However, in arriving at a question of fact if the Courts below have committed an error of law, which caused grave F injustice the High Court can interfere in the revisional jurisdiction. The Courts below have violated the provisions of Order VII, Rule 11, C.P.C. And by rejecting the plaint not covered by the provisions of Order VII, G Rule 11, C.P.C. Has exercised jurisdiction which was not vested in them.

10. ' In view of the above the orders dated 20-11-2002 and 24-12-2005 passed by the Courts below are set aside and this revision application is allowed. The case is remanded to the trial Court to admit the suit and to decide the same in accordance with law. Since the suit was filed in 2002. I direct the trial Court to proceed with the suit expeditiously without allowing unnecessary adjournments.

11. ' The parties are left to bear their own cost.