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Miscellaneous Application No. 2793 in Suit No. 5 of 1982, decided on 10th November, 1982.

‑‑O. VII, r. 11(d) read with Provisional Constitution Order (P. O. 1 of 1981), Art, 15(4)‑Plaint‑Rejection of‑For purpose of deciding application under O. VII, r. I 1(d) assertion of facts in plaint must be treated as correct‑Plaint mentioning oral gift of suit property in favour of plaintiff. its acceptance and taking possession of property on his behalf‑Donor (plaintiff's father) convicted by Summary Mili tary Court much after said gift‑Held, Art. 15 (4) of Provisional Constitution Order (P. O. 1 of 1981) not applicable and suit not barred.

Farooq H. Naek for Plaintiff.

Ibrahim Memon, Addl. A.‑G. (Sind) for Defendant.

Date of hearing : 10th November, 1982.

This is an application under Order VII, rule 11, C. P. C. for rejection of the plaint. It is not mentioned in the application that under which sub rule of rule 11 the application has been filed. Apparently it has been filed under sub‑rule (d) of rule 11 of Order VII, C. P. C. In the affidavit in support of this application it is averred as follows :‑

(1) That I am Assistant Commissioner Karachi (East) as such well versed with the facts involved in the accompanying application under Order VII, rule 11, C. P. C.

(2) That the property in question has been confiscated under the orders of Martial Law Authorities.

(3) That I am advised to say that under Articles 9 and 15 of the Pro visional Constitution Order, 1981 this Hon'ble Court has no jurisdic tion to entertain the suit or to pass any interim order."

2. For purposes of deciding an application under Order VII, rule 11(d), C. P. C., the facts stated in the plant are to be taken as correct. In the plaint it is mentioned in para. 10 that in July, 1980 the Plaintiff's father was con victed under Martial Law Regulation 31 and Martial Law Order No. 5 by the President Summary Military Court No. 18, Rawalpindi and apart from one year's imprisonment given to him, all his movable and immovable properties have been confiscated. In para. 4 of the plaint it is mentioned that in March, 1978 the plaintiff's father made an oral gift in favour of the plaintiff which was duly accepted by the plaintiff's attorney who also took possession of the property in suit alongwith the documents of title on behalf of the plaintiff.

3. In support of this application, Mr. Ibrahim Memon, learned Addi tional Advocate‑General, has referred to para. 10 of plaint. Then he has contended that no steps were taken by the plaintiff to get the property in suit mutated in his favour. It was finally contended that under Article 15(4) of the Provisional Constitution Order, the present suit is barred and the plaint is liable to be rejected.

4. I have perused Article 15(4) of the Provisional Constitution Order. The order of the Summary Military Court No. 18, Rawalpindi confiscating the property of the plaintiff's father has also been shown. The order of the Summary Military Court does not say that the property in suit stands con fiscated. Further, as observed earlier, for the purposes of deciding the application under Order VII, rule 11(d), C. P. C. the assertion of facts given in the plaint are to be treated as correct. In para. 4 of the plaint it is mentioned that an oral gift was made in March, 1978 (much before the conviction of plaintiff's father in July, 1980) in favour of the plaintiff in respect of the property in suit and the gift was accepted and possession of the same had also been taken on behalf of the plaintiff. If these facts are taken as correct, the property in question became the property, of plaintiff in 1978, i.e. more than two years prior to the date of the order of the Summary Military Court.

5. It is an admitted position that the said order of the Summary Military Court has not been challenged by the plaintiff in the present suit. The argument that no steps were taken by the plaintiff to get the suit property mutated in his favour, has no relevance. The question of prima facie case is to be seen is whether on the facts stated in the plaint and assumed to be correct the suit is barred by any law. Article 15(4) of the Provisional Constitution Order also has no application as order of the Summary Military H Court is not being challenged in the present proceedings.

6. The present application has no merit. C. M. A. 2793 of 1982 is dismissed.

Mr.. Ibrahim Memon learned Additional Advocate‑General states that the present suit may be heard at an early date. An application can be filed by the learned counsel and the same will be decided on its own merits.

K. M. A. Application dismissed.

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