Mst. SHABEONA PER VEEN vs M/s. DEFENCE OFFICERS, HOUSING SOCIETY

1. ' This Civil Revision Petition is directed against the order dated 28-11-1989 passed by the IInd Additional District Judge, Karachi, South, whereby dismissing the appeal filed by the petitioner and affirming the order dated 23-2-1988 passed by the Vth Sr. Civil Judge (South), Karachi.

2. ' The facts leading to the filing of the above revision petition are that the petitioner filed a suit bearing No,925 of 1982 for declaration and injunction against the respondent. The case of the petitioner as set out in the plaint was that on 16-9-1976 Plot No,8/B, 23rd Street, Phase V, admeasuring 2,000 sq. Yards situated in Defence Housing Authority was allotted to Cap. Javed Rehmatullah. It is the case of the petitioner that she purchased the plot in dispute from the said allottee Javed Rehmatullah and on 1-8-1978 transfer affidavit alongwith an undertaking and letter of mutation of the petitioner's name was signed by the said allottee to her. It is the further case that the applications for transfer and mutation of the plot in dispute were submitted to the respondent for effecting necessary mutation. The respondent directed the petitioner to clear outstanding dues which were promptly done. It is the further case of the petitioner that the respondent by its letter dated 7-7-1980 intimated that the allotment of the plot was cancelled. It is the case of the petitioner that cancellation letter is illegal, void and inoperative. In these circumstances the petitioner filed the above suit for declaration and injunction.

3. ' On receipt of summons, the respondent filed written statement as well as an application under Order 7, Rule 11, C.P.C. The application was allowed by an order dated 23-10-1983. The petitioner went in appeal which was allowed by order dated 11-2-1985. During the course of cross- examination it was revealed that she purchased the plot for Rs,2,50,000. The respondent filed an application stating therein that the Court had no jurisdiction to entertain the suit. The trial Court allowed the application and ordered to return the plaint for presentation to the proper Court having jurisdiction. The petitioner being aggrieved preferred an appeal which was dismissed as stated in the earlier part of this judgment. The petitioner being aggrieved has filed the present petition. I have heard Mr. Mumtaz Ahmed Sheikh, counsel appearing for the petitioner and Mr. Nazar Hussain Dhoon, Advocate appearing for the respondent. I have perused the impugned orders and have gone through the pleadings.

4. ' The petitioner filed the suit for declaration and injunction against the respondent. The respondent filed written statement wherein plea of want of jurisdiction was not taken.

5. ' It is well settled that law 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 the averments made in the plaint. Every allegation made in the plaint has to be accepted as correct while rejecting the plaint under Order VII, rule 11, C.P.C. The fact that the plaintiffs may not ultimately succeed in establishing the allegations in the plaint cannot be a ground for rejecting a plaint under Order VII, rule 11, C.P.C. In the instant case the respondent had already filed written statement. It is an admitted position that the pleas of valuation and maintainability of the suit were not taken by the respondent. The trial Court has not applied its mind to this aspect of the case. The plea raised by the respondent is in the nature of a defence in the suit and cannot be looked into while considering the application under Order VII, rule 11, C.P.C. The A pleas of maintainability of suit and valuation will be open to be raised by the respondent at the time of trial of the suit. It seems that the learned appellate Court has also not applied its mind to this aspect of the case. In this view of the matter the impugned orders of the trial Court as well as appellate Court suffer from material irregularity or are made in excess or failure of jurisdiction as such are set aside.

6. ' In these circumstances, the Revision Petition is allowed and the impugned orders are set aside.

7. The suit is deemed to be pending before the trial Court for adjudication on merits. The parties are directed to appear before the Vth Sr. Civil Judge, Karachi (South) on 5-5-1990, when the trial Court would fix a date for examining the witnesses of the parties. The respondent is at liberty to take any legal plea as it wishes and the trial Court will frame additional issues which will include legal objections. In the circumstances of the case the parties are directed to bear their own costs.