FAZAL KAREEM Versus MUHAMMAD SAEED

ORDER

Muhammad Saeed respondent No. 1 instituted a suit against Fazal Kareem petitioner and respondents Nos. 2 to 8 for the partition of a house claiming joint ownership therein. The petitioner contested the suit on various grounds and then moved an application under Order VII, rule 11, C.P.C. for the rejection of the plaint asserting that the plaint did not disclose any cause of action. Respondent No. 1 resisted the said application. After hearing the parties' learned counsel the learned trial Court vide order dated 6‑1‑1993 dismissed the said application. Feeling aggrieved the petitioner went up in revision but his revision petition was also dismissed by the learned District Judge vide order dated 26‑1‑1993. Still not satisfied the petitioner has, through the instant writ petition, invoked the Constitutional jurisdiction of this Court to have it declared that the two aforementioned orders of the learned Courts below are without lawful authority and of no legal effect.

2. I have heard learned counsel for the petitioner and learned counsel for respondent No. 1 to whom a pre‑admission notice was issued. I have also perused the material available on record.

3. The contention of the petitioner is that in the plaint respondent No. 1 has wrongly described Mehr Shammoo to be the original owner of the house in dispute whereas the house was owned by Mst. Mehr‑un‑Nisa the wife of the aforementioned Mehr Shammoo. It was contended that on account of this lapse the plaint was liable to be rejected as it did not disclose any cause of action. Perusal of the plaint shows that respondent No. 1 had described Mehr Shammoo, his great‑grandfather, as the original owner of the house in dispute. He claimed 1/2 share in the said house through inheritance as well as a registered release deed executed in his favour by some of its joint owners. From the bare reading of the plaint it is clear that if the assertions made therein are accepted correct respondent No. I would be entitled to the decree prayed for. He thus has a cause of action. It is totally a different thing as to whether or not he succeeds in proving his case. The question as to whether Mehr Shammoo or Mst. Mehr‑un‑Nisa was the owner of the house in dispute could only be decided after recording evidence. Without any such evidence the learned Courts below could not decide as to who was the original owner of the said house. They, therefore, were quite justified in not rejecting 'the plaint under Order VII, rule 11, C.P.C.

4. The impugned orders do not suffer from any jurisdictional defect, or illegality. No interference is called for. The writ petition is dismissed. The learned trial Court is directed to expedite the disposal of the suit.

H.B.T./F‑119/L Writ refused.