MUHAMMAD ALTAF and others vs ABDUR REHMAN KHAN and others

ORDER

' AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 11-2-1997 passed by a Division Bench of the High Court of Sindh in H.C. Appeal No,157 of 1996, filed by respondent No,1 against the order, dated 4-8-1996 of a learned Single Judge, rejecting the respondent No, l's suit under Order VII. Rule 11, C.P.C., allowing the same for the following reasons:-- ' "In the circumstances, the learned Single Judge should not have rejected the plaint under Order VII, Rule 11, C.P.C. When a specific and definite allegation of fraud was levelled by the appellant/plaintiff and should have enquired into the question of fraud."

2. The brief facts are that respondent No,1 filed Suit No,535 of 1995 in the High Court of Sindh against the petitioners for declaration, cancellation of sale-deed and injunction. The dispute mainly related to an open space of about 690 sq. Ft. Which, according to respondent No,1, was intended for parking of cars and motorcycles as it was part of three storeyed building, namely, Jilani Mansion comprising flats. It was alleged that respondent No,1 and his brother Aziz-ur-Rehman had been parking their cars and motorcycles in the above passage just at the site of Flat No,G/1 on the ground floor. It was also averred that the defendants illegally occupied common parking passage land in front and back to the south of the building. The above suit was resisted by the petitioners and inter alia an application under Order VII, Rule 11, C.P.C. Was filed, in which a number of legal pleas were raised. The learned Single Judge by his aforesaid order dated 4-8-1996 allowed the aforestated application on a number of grounds including that the respondent No,1 failed to make out a case of infringement of any easement right. The suit was barred under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, etc. Against which respondent No,1 filed aforementioned High Court Appeal, which has been allowed. The petitioners have, therefore, filed the present petition for leave to appeal.

3. In support of the above petition Mr. Akhlaq Ahmed Siddiqui, learned Advocte-on-Record for the petitioner, has vehemently contended that each and every point was thoroughly dealt with by the learned Single Judge and, therefore, the learned Judges of the Division Bench were not justified in interfering with the above order of the learned Single Judge.

4. We would not like to express our views on the merits of the respective case of parties. However, it will suffice to observe that for the purpose of an application under Order VII, Rule 11, C.P.C., the averments contained in a plaint are to be presumed to be correct. In the case in hand, learned Judges of the Division Bench have rightly pointed out that the allegation of fraud which was also averred in the plaint could not have been resolved without recording evidence. In this view of the matter, the learned Single Judge was justified in non-suiting the petitioners under Order VII, Rules 11, C.P.C.

5. The impugned judgment of the Division Bench seems to be in consonance with law and therefore, does not call for interference by this Court. Leave is refused.