BABAU RAHIM BUX vs WALT MOHAMMAD and another
This civil revision application challenges an appellate court judgment that set aside a trial court's order rejecting a plaint in a suit for permanent injunction. The core legal question was whether the trial court correctly rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure 1908 for failing to disclose a cause of action. The respondent had filed a suit claiming possession of property based on a sale agreement, despite the property being in an unauthorized area. The High Court held that the appellate court's decision to set aside the rejection of the plaint was correct. The Court reaffirmed the principle that for a plaint to be rejected under Order VII, Rule 11, the bar must be apparent from the averments made within the plaint itself, not from the defendant's written statement or counter-affidavit. The Court concluded that the allegations in the plaint were sufficient to disclose a cause of action, leaving the petitioner to raise their defense during the trial. Consequently, the revision was dismissed, and the trial court was directed to expedite the suit's disposal.
- Can a plaint be rejected under Order VII, Rule 11, Code of Civil Procedure 1908 based on the averments made in a written statement?
- Is a plaint liable to be rejected if the allegations contained therein, when accepted as true, disclose a cause of action?
- What is the proper scope of judicial scrutiny when determining whether a plaint discloses a cause of action?
- Order VII Rule 11, Code of Civil Procedure 1908
- Order XXXIX Rule 1, Code of Civil Procedure 1908
1. ' This Revision Application is directed against the judgment dated 13-5-1990, passed by the IInd Additional District and Sessions Judge (West) Karachi, whereby the order of the learned trial Court rejecting the plaint has been set aside.
2. ' The facts leading to the filing of the above revision are that the respondent No,2 filed a suit against the petitioner and respondent No,1 for permanent injunction. The case of the respondent as set out in the plaint was that he is son-in-law of respondent No,1 and brother-in-law of respondent No,2 and resides in the aforementioned address with the respondent No,1. It is the case of the respondent No,2 that on 24-4-1984 he purchased plot bearing No,B/266, Muhammad Pur, Qasba Colony, Karachi from respondent No,1 by way of sale agreement. It is the further case of the respondent No,2 that since.The house mentioned above was in an unauthorised area and the same was Kachi Abadi and was covered under MLO No,110 and Registration of the said property was not possible. However, at the time of execution of the sale agreement the respondent No,1 handed over peaceful possession of the suit property after receiving the sale consideration of rs72,000. It is his further case that since 24-5-1984 he is enjoying the peaceful possession of the property in suit and as such respondent No,1 has allowed the respondent No,2 to reside with him. In these circumstances he filed the suit for permanent injunction. Alongwith he suit an application under Order XXXIX, Rule 1 C.P.C. Was filed praying that he may not be dispossessed from the suit property. The petitioner contested the application. The learned Civil Judge after taking into consideration the arguments advanced by the learned counsel for the parties dismissed the application as well as rejected the suit vide his order dated 29-1-1990. The respondent No,2 being aggrieved, went in appeal. The learned Ilnd Additional District Judge allowed the appeal and set aside the order of the rejection of plaint and also directed the Civil Judge to re-hear the arguments on the application.
3. ' The petitioner being aggrieved filed the present Revision.
4. I have heard Miss Sarwar Jehan, Advocate in support of the petition and Mr. Gulzaman Khan, Advocate and Mr. Mohammad Yaqoob, Advocate appearing for respondent No,2.Miss Samar khan, the learned counsel for the petitioner has urged before me that on the basis of the averments made in the plaint no cause of action has been disclosed. On the other hand, Mr. Gulzaman, learned counsel for second respondent has argued that if all the allegations in the plaint are accepted as true the plaint discloses cause of action. I have carefully considered the contentions raised by the learned counsel of either side. It is well-settled law that in order to reject a plaint under Order VII, Rule 11, C.P.C., the plaint must be shown to be barred under some law on the basis of averments made in the plaint. I have accordingly examined the plaint in suit No,12 of 1990, a copy whereof is available on record of this revision, to find out if the plaint discloses cause of action. On the face of the allegations in the plaint it cannot be said that it discloses no cause of action. If at this stage on this plea the plaint is rejected then it would amount to rejecting it on the basis of the averments made in the written statement and counter-affidavit and not the plaint itself. It will be open for the petitioner to raise this issue at the trial and establish it by evidence.
5. ' In view of these facts I am of the opinion that the judgment of the Its Appellate Court is proper and legal and does not call for any interference. The learned counsel for the parties have filed consent issues today in Court and submit that the suit is already fixed on 9-10-1991 before the trial Court.
6. The learned counsel for the petitioner has stated that the learned Appellate court. Has wrongly - directed the trial Court to re-hear the arguments on the application under Order XXXIX, Rule 1, C.P.C., and their submission is that the second respondent has dispossessed the petitioner during the pendency of the suit. It is proper that the second respondent is directed not to part with possession till the disposal of the suit. I think the submission is just and proper in the circumstances- of the case. The second respondent is restrained from parting with the possession of suit property till the disposal of the suit.
7. ' In these circumstances, the Revision is dismissed. However, the trial Court is directed to dispose of the suit within three months from 9-10-1991. The parties are directed to appear before the learned trial Court on 940-1991, when the trial Court would fix a date for examining the witnesses of the parties. Office is directed to send copy of this order as well as consent issues before 9-10-1991 positively.