MUHAMMAD JAVED Versus KARACHI COOPERATIVE HOUSING SOCIETIES UNION Ltd.

1. By this Revision Application under Section 115, C.P.C. the applicant has challenged the two concurrent judgments of the Courts below whereby the plaint in Suit No. 2127 of 1980 instituted by the applicant/plaintiff was rejected under Order 7, Rule 11 C.P.C. The only contention raised by the learned counsel for the applicant in support of the Revision Application is that the Courts below exceeded their jurisdictions in rejecting the plaint and holding it as barred under M.L.O. 34 and Section 70-A of the Cooperative Societies Act as in doing so the Courts below relied and took into consideration the pleas raised by respondents Nos. 1 and 2 in their defences. Mr. Shah Jamal Alam and M. M. Mahmoodi, on the other hand contended that although it is not disclosed in the plaint by the plaintiff/applicant that the plots allotted to them were originally amenities plots but in view of the fact that the allotments in favour of the plaintiff/applicant were made subsequent to the cancellation of the allotment of same under MLO 34, the suit was not maintainable. After hearing the learned counsel for the parties I am convinced that the decision of the Courts below in rejecting the plaint under Order 7, Rule 11, C.P.C. was based upon consideration of the pleas raised by the defendants in defence. It is settled law that a Court while deciding the application under Order 7 Rule 11 C.P.C. has only to look into the averments made in the plaint and upon acceptance of what is stated in the plaint as correct if it is found A that no relief could be granted to the plaintiff it is only then that the plaint could be rejected under Order 7, Rule 11, C.P.C. At the stage of consideration of application under Order 7, Rule 11, C.P.C. the Court is not entitled to consider the pleas which arc raised by the defendants in their defence to the claim in suit. I am informed by the learned counsel for the applicants that at the time of rejection of the plaint even the written statement was not filed by the respondents in the case. I, accordingly, allow this Revision Application, set aside the judgments and decrees passed by the two Courts below and remand the case back to the trial Court with the direction that an opportunity be given to respondents to file their written statement in the case and on the basis of controversy which B may be raised in the written statement the Court may frame issues including an issue with regard to jurisdiction of the Court and decide the same after recording evidence of the parties either as a preliminary issue or alongwith other issues in the suit as the Court may think proper. There will be no order as to costs.

2. M.Y.M/M-508/K.

3. Case remanded