HAROON PARACHA Versus MUHAMMAD SHAHID KHAN
ORDER
1. This revision application is directed against the orders passed by the VI Senior Civil Judge, Karachi in Suit No. 1240 of 1992 whereby he rejected the applications moved by the present petitioner under Order VII, rule 11, C.P.C. In the said applications the main grounds taken by the present petitioner are that the said suit was not valued properly as the suit falls under section 7(iv)(d) of the Court Fees Act and ad valorem court‑fee should have been paid. The second ground taken was that the present petitioner is not the owner of the disputed premises nor he is raising the construction thereon and, therefore, the suit against him is not maintainable. The order of the trial Court shows that these two points have been taken into consideration in an order passed earlier on 28‑10‑1992. Mr. Latif Shakoor, the learned counsel for the petitioner states that this order has been challenged in appeal and that appeal is still pending. He has further urged that under Order VII, rule 11, C.P.C. the Court can suo moto take into consideration the merits of the case and reject the plaint if so warranted under the provision of Order VII, rule 11, C.P.C. He has placed reliance on the case of Mst. Kulsoom (Fatima) v. Wazir Ali and 13 others (1991 MLD 1810) wherein it is laid down as under:
2. It is settled law that in case of dealing with an application under Order VII, rule 11, C.P.C. it is the plaint and its accompaniments only which are to be taken into consideration and if from these documents, the suit appears to be barred by law or the plaint does not disclose any cause of action then the plaint is to be rejected. This provision, however, is not exhaustive. The principle underlying this provision is that a still born suit is to be buried at its very inception. It may further be observed that the provisions of Order VII, rule 11, C.P.C. contemplate that no further time be consumed on a fruitless litigation and also that it gives plaintiff a chance to retrace his steps at the earliest possible moments, so that, if permissible under law he may file a properly constituted suit."
3. There is no cavil about the abovesaid provision of law. However, the position in the present case is different from the one in the above case. In .the present case the two pleas raised by the petitioner in this revision application were also raised before the trial Court who had the jurisdiction to take into consideration the same suo motu and both these pleas were declined. The matter is subjudice in appeal before the lower appellate forum. Passing any order in the present ,revision application would amount to pre‑empting the pending appeal. It will however be open for the petitioner to raise the same points before the learned appellate Court where the appeal is pending as he can exercise the same powers as that of trial Court and even suo motu direct the rejection exercise plaint in case it falls within the purview of any of the four clauses of Order VII, rule 11, C.P.C. With these observations, the present revision application is dismissed summarily alongwith C.M.A. No. 1132/93.
4. .B.T./H‑375/K Revision dismissed.