CHIEF ADMINISTRATOR, AUQAF Versus NASEER AHMAD
1. This Civil revision is directed against the judgment and decree dated 13-1-1988 passed by the IInd Additional District Judge, Karachi East, whereby she allowed the appeal and set aside the order dated 22-9-1987 passed by the Vth Senior Civil Judge, Karachi East, whereby the plaint was rejected.
2. The facts leading to the above revision are that the respondents filed a suit for declaration and injunction against the petitioner, praying that Maulana Mohammad Asghar Dars is the proper person to lead Friday prayers.
3. I have heard Mr. S.S. Hamid learned counsel for the petitioners. Mr. S. Mohammad Ali Advocate, the counsel for the respondents was absent.
4. Mr. S.S. Hamid has contended before me that on the basis of the averments made in the plaint, no cause of action has been disclosed and even if all the allegations made in the plaint are taken to be true, the plaint is barred under Section 21 of Sind Waqf Properties Ordinance, 1979. I have carefully, considered the contention of the learned counsel for the petitioners. It is well -settled law that in order to reject the plaint under Order VII, Rule 11, CPC, the plaint must be shown to be barred under some law on the basis of the averments made in the plaint. Every allegation made by the plaintiff in the plaint has to be accepted as correct while rejecting the plaint under Order VII, Rule 11: CPC. The fact the plaintiff may not ultimately succeed in establishing the allegations in the plaint cannot be a ground for rejection of the plaint. I have perused the plaint in Suit No.1010 of 1987, a copy thereof is annexed to the memo of Civil revision. In para. 4 of the plaint, the plaintiffs/respondents have stated that defendants neglected in their duties and have not taken any interest to solve the problems of Mussaliayan of the Masjid. In para 5 of the plaint, it is alleged that "a few interested officers of the defendants have been creating disturbance in the Masjid to achieve their ulterior motive since long and helping a few persons who were the members of the Ex-Development Committee. The Tenure of the said Committee expired on 31st December, 1986". In para 6, it is stated that "Mussalayan/Namazees stopped the illegal collection of the donation from the said Masjid". In para 7 of the plaint it is stated that "on stopping the illegal collection of donation the defendants officers tried to appoint a new Imam and Khateeb of their choice and for this purpose they made a conspiracy with the members of Ex-Development Committee, thus to remove th4 present Imam and Khateeb Maulana Asghar Dars, who has been leading Friday prayer for last five years". In para 12, it is alleged that "when this order came to the knowledge of the Musliayan, they approached the defendant No.2, who showed his ignorance in the matter. He told that it is not possible that in the presence of one Khateeb, second one may be appointed in his place. The Namazis are as full liberty to offer their prayers in the Imamat of Maulana Asghar Dars". In para 13, it is alleged that "to avoid any confusion the Mussaliayan/Namazees published the advertisements in Daily Jang for general information". In para 14, it is alleged that "when the defendants officers saw that their plan failed they tried to create disturbance in the Masjid and issued a second Office Order appointing a new Khateeb for Friday prayer". The allegations of ulterior motive and conspiracy are made in these paras. How far the respondents will succeed cannot be said at this stage. On the face of these allegations to the plaint, it cannot be said that the Civil Court is barred to go into these allegations by reason of Section 21 of Sind Waqf Properties Ordinance, 1979.
5. In view of the matter, the learned counsel for the petitioners has fairly conceded that order of the IInd Additional District Judge does not suffer from it any material irregularity nor is made in excess or failure of jurisdiction.
6. For the aforesaid reasons, the Civil revision is denied, the impugned order is affirmed. The parties are directed to appear before the Vth Senior Civil Judge, Karachi East on 29-4-1989. The learned Senior Civil Judge is directed to frame issues on 29-4-1989 and to fix date for evidence. The main suit is to be disposed of within six months from 29-4-1989, according to law, after giving opportunities to the parties.
7. M.Y.H./C-115/K
8. Petition dismissed.