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Civil Revision No. 689 of 1972, decided on 30th April, 1973.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)-

S. 6 read with Civil Procedure Code (V of 1908), O. V1I, r. 11(d)Plaint, rejection of: Provisional Transfer Order, validity of-Suit challenging transfer order, held, barred under S. 6, Act 1958.[Plaint-Jurisdiction].

(b) Civil Procedure Code (V of 1908)-

- O. VII, r. 11 (a)-Plaint, rejection of-Petitioners having only to show to have had a cause of action and such cause of action shown by pleading that Rent Controller's order could not be executed against them for reason of their having been in possession of property since before 1958-Question whether petitioners would be able to prove such allegation in Court or not being not capable of being decided without framing issues and giving petitioners opportunity to produce evidence, plaint, held, could not be rejected.

Allah Wasaya Malik for Petitioners.

Zafar Yasin for Respondent.

Only Civil Miscellaneous No. 854/C of 1973 was fixed for hearing today, but as the arguments of the civil miscellaneous petition and the revision petition were to be identical, I have heard arguments on the revision petition and propose to dispose it of.

2. The facts of this case are that the property in dispute was transferred by the Settlement Department under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to the respondent. He filed a petition for ejectment of Muhammad Rafiq, Din Muhammad sons of Muhammad Sharif, Muhammad Hanif, Muhammad Siddique sons of Nasib-ud-Din, Jhanda son of Rehmat Ullah and Suleman son of Murad Bakhsh. An order of ejectment was passed by the learned Rent Controller. The petitioners filed a suit challenging the validity of the Provisional Transfer Order passed in favour of the respondent and in the alternative claimed that a relationship of landlord and tenant had not arisen between them and the respondent and as no order for their ejectment was passed by the learned Rent Controller, the respondent had no right to eject them in execution of that order. It may be stated that plaintiffs Nos, 1 and 2 daughter and widow respectively of Muhammad Sharif, are sister and mother of two judgment-debtors in proceedings before the Rent Controller and Nasib-ud-Din petitioner No. 3 is the father of the two of the respondents in those proceedings. This plaint was rejected by the learned

trial Court under order VII, rule 11, C. P. C. on the ground that the validity of the P. T. O. could not be challenged before a civil Court and as petitioners Nos. 2 and 3 have already filed an objection petition in the execution proceedings, regarding their tenancy, they can raise all the relevant questions there. The petitioners filed an appeal against this order which was dismissed by Mr. Akhtar Hussain, District Judge, Mianwali, by order dated the 15th June, 1972. He also held that the validity of the P. T. O. could not be considered by a civil Court. Regarding the other point, he observed as follows :

"It is the appellant's own case that they are in possession of this house since 1947 (Independence). It proceeded the year 1958 and of necessity required some legal source, but none was claimed. Without it, the possession cannot be protected against any eviction through the process of law."

I have not been able to follow this reasoning regarding the point of tenancy. Order VI1, rule 11 provides as follows :

"The plaint shall be rejected in the following cases :

(a) where it does not disclose a cause of action ;

(b) ..

(d) where the suit appears from the statement in the plaintiff to be barred by any law."

The rejection of the plaint regarding the validity of the P. T. O. is covered by clause (d). To this extent there can be no legal objection possible to the orders of the Court below as the suit challenging the transfer is barred by A sections 6 and 25 of the Displaced Persons (Compensation and Rehabilitation)

Act, 1958.

3. The other portion of the judgment appears to have been given under clause (a) of rule 11 of Order VII. The learned appellate Court of first instance has however made disposed of this case not on the ground recognised by clause (a) of rule 11 of Order V1I, C. P. C. but on altogether different grounds that the question raised in the plaint could be decided either in some alternative proceedings or the plea advanced by the petitioner had legally no force. To say the least, this approach is beyond the scope and ambit of Order VII, rule 11, C. P. C. At this stage the Court only had to see to whether the plaint disclosed a cause of action. It is pleaded in para. 4 of the plaint that even if the transfer order passed in favour of respondent No. 1 was unexceptionable, the order passed by the learned Rent Controller against persons other than the petitioners could not have been executed against the petitioners B for the reason that they were in possession of the property since before 1958. At this stage the petitioners had only to show that they had a cause of action is evident from the above para. The question whether the petitioners would be able to prove this matter in the Court or not cannot be decided without framing issues and without giving them an opportunity to produce evidence.

4. I, therefore, allow this revision petition, set aside the order of the learned Courts below and direct the suit to be tried on merits on the question of statutory tenancy and validity of the binding nature of the order of the learned Rent Controller against petitioners.

The respondent will pay the costs of this petition to the petitioners.

M. A. K. Revision allowed.

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