SURIYA BANO Versus GOVERNMENT OF WEST PAKISTAN

The appellant was appointed as an Assistant Mistress in the Government Girls High School, Chauburji, Lahore, on 28th September 1966. Her services were terminated on 17th June 1968. She filed a declaratory suit on 7th April 1969 which was dismissed by the learned trial Judge without framing any issue on 5th January 1970. Her appeal before the Additional District. Judge failed on 11th May 1970. Hence this second appeal.

2. Both the Courts halve fallen into an error in dismissing the suit without framing any issue. It seems that the learned trial Judge has probably passed the order under Order VII, rule 11, C. P. C. considering that the plaint was not disclosing any cause of action. From perusal of the pleadings of parties the findings of both the Courts does not seem to be correct. Prima facie the plaint does disclose cause of action and the parties are at variance. Therefore, the suit could not be dismissed under Order VII, rule 11, C. P. C. The proper course should have been to frame the issues on which the parties are at variance and then to proceed under order XV if the occasion so warrants. Without framing any issue the suit cannot be dismissed. The plaint could, however, be rejected under Order VII, rule 11 of the Code of Civil Procedure. Since the suit has illegally been dismissed both the orders of the Courts below are set aside. The case is remanded to the trial Court for expeditious determination. Parties to bear their own costs.

S. A. H. Appeal allowed. Case remanded.