ABDUR RAHIM Versus KARACHI DEVELOPMENT AUTHORITY

ORDER

1. This case is fixed today for only hearing of miscellaneous application, however, with the consent of the learned counsel for the parties. I have heard the main revision petition and it is disposed of as follows:‑

2. The petitioner instituted Suit No. 771 of 1984 for declaration and permanent injunction. Alongwith the suit, the petitioner also filed an application under Order 39, Rules 1 and 2, C.P.C. for grant of a temporary injunction restraining the respondent from disturbing his possession of the suit property. The learned trial Court issued notice of injunction application to respondent who opposed the application and also filed application under Order 7, Rule 11, C.P:C. for rejection of the plaint on the ground that the suit is barred under the provisions of M.L.O. 110 as well as under section 42 of the Specific Relief Act. It appears that the learned trial Court heard both applications namely, under Order 7, Rule 11, C.P.C. and under Order 39, Rules 1 and 2, C.P.C. together and rejected the plaint without deciding the applications under Order 39, Rules 1 and 2, C . P. C . The order of the trial Court has been confirmed in appeal by the First Appellate Court. From reading of orders of the two Courts below, it is quite clear that the rejection of the plaint under Order 7, Rule 11, C.P.C. is based on the pleas raised by the respondents in their application under Order 7, Rule 11, C.P.C. and the material supplied alongwith the counter‑affidavit filed by them in reply to the applicant's application under Order 39, Rules 1 and 2, C.P.C. It is well‑settled law that the Court while rejecting the plaint under Order 7, Rule 11, C . P. C . can do only if the plaint appeared to be barred under some law on the basis of the averments made in the plaint. The Court could not reject the plaint on the basis of pleas raised by the defendant in his defence or in the application under Order 7, Rule 11, C.P.C. It is, however, open to the Court if it so desires to frame preliminary issues with regard to the maintainability of suit and after bringing the relevant material on record in accordance with law decide the preliminary issues first, before proceeding with the suit. In view of the above discussion, the orders of the two Courts below are set aside and the case is remanded back to the trial Court for disposal according to law. The respondent is at liberty to raise the question of maintainability of suit before the Court below which will be decided according to law. As the application filed by the petitioner under Order 39, Rules 1 and 2 read with section 151, C . P. C . was not specifically decided by the trial Court while rejecting the plaint it shall be deemed to be pending and will be disposed of in accordance with the law. As there is no interim order now in favour of the petitioner and the trial Court had also not granted any ad interim order in favour of petitioner while issuing notice to respondent, the parties are directed to appear before the trial Court on 17‑8‑1987 on which date the learned Court will hear the above application and shall pass such order as it may deem fit in the circumstances of the case in accordance with the law.

3. H.B.T./A‑291/K Case remanded.