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Civil Revision No. 891 of 1983, decided on 3rd December, 1983.

‑‑‑O. VII, r. 11‑‑Rejection of plaint‑‑Cause of action‑‑Jurisdiction of Court‑‑Plaint could be rejected it' contents thereof did not disclose any cause of action‑‑Court below rejecting plaint placing reliance only on documents and averments of defendant instead of considering contents of plaint‑‑Courts, held, acted illegally in exercise of jurisdiction.

Muhammad Hussain v. Federal Government 1980 C L C 1656; Messrs Zor Engineering Ltd. v. State Bank of Pakistan P L D 1980 Lah. 534; Muhammad Sharif v. Mst. Rasool Bibi 1981 C L C 533 and Malik Muhammad Akram v. Mahmooda Begum 1982 C L C 473 rel.

Burmah Eastern v. Burniah Eastern Employees' Union P L D 1967 Dacca 190 distinguished.

Wasim Sajjad for Petitioners.

Abdul Ghaffar Khan for Respondents.

Date of hearing: 3rd December, 1983.

This revision petition is directed against the judgment, dated 10‑5‑1983 of the learned Additional District Judge, Toba Tek Singh, whereby he upheld the judgment and decree, dated 31‑3‑1983 of the trial Court rejecting the plaint of the petitioners‑plaintiffs under Order VII, rule 11, Code of Civil Procedure (V of 1908).

2. The facts relevant for the disposal of this petition, as per record, are that the petitioners‑plaintiffs filed a suit for declaration that they were owners in possession of the land measuring 42 Kanals and 9 Marlas, situated in Kamalia, as a result of oral gift made in their favour by respondent No. 1 about six years ago. The petitioners had claimed in the suit that the gift had been completed and possession delivered to them, as per averments made in para. 2 of the plaint, which reads thus:‑‑

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Alongwith the plaint an application for temporary injunction was also filed. The respondent resisted the suit, as well as, the application and filed a number of documents in support thereof. he denied the factum of gift on the ground that the mutation of gift had not been entered. The learned trial Judge observed that the plaintiffs /petitioners had no prima facie case, in that, according to the copy of the Jamabandi for tile year 1980‑81 defendant/respondent No. 1 was owner of the disputed land; that there was verbal gift between the parties, as per record; the gift deed was not registered under section 123 of the Transfer of Property Act (IV of 1882) and the Khasra Girdawari produced by defendant/respondent No. 1 Showed that Sadiq and Ghulam were tenants under him. For these reasons the application for temporary injunction was dismissed and the plaint was also rejected under rule 11 of Order VII, Code of Civil Procedure, 1908. On appeal, the learned Additional District Judge upheld the order of the trial Court. The learned Additional District Judge observed that the plaintiffs/ petitioners made no averment in the plaint that defendant /respondent No.1 made a declaration of gift and the same had been accepted by the plaintiffs/petitioners. He also relied upon a copy of the newspaper advertisement available on the file through which defendant No. 1 in 1977 severed his relations with the petitioners due to differences absence of mutation of gift, entries made in the Khasra' Girdawari showing the defendant to be the owner of the property. It was observed on the basis of the said documents produced by the defendant /respondent No.1' that no valid gift as contemplated by section 149 of the Muhammadan Law was made in favour of the plaintiffs/petitioners as they were not in possession.

3. Learned counsel for the petitioners contends that the Courts below have acted illegally in placing reliance on the documents tendered by the respondent alongwith the written statement while rejecting the plaint. It is Submitted that in terms of rule 11 of Order VII, Code of Civil Procedure, 1908, a plaint can only be rejected if it does not disclose a cause of action. Reliance is placed on Muhammad Hussain v. Federal Government 1980 C L C 1656, Messrs Zor Engineering Ltd. v. State Bank of Pakistan P L D 1980 Lah. 534, Muhammad Sharif v. Mst. Rasool Bibi 1981 C L C 533 and Malik Muhammad Akram v. Mahmooda Begum 1982 C L C 473.

4. Learned counsel for the respondent has relied on Burmah Eastern Ltd. v. Burmah Eastern Employees' Union P L D 1967 Dacca 190, to contend that it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent. The precise submission is that since the plaintiffs‑petitioners failed to establish their claim of a valid gift having been made in their favour through their pleadings and documents no exception can be taken to the rejection of the plaint.

5. Having considered the authorities cited at the Bar and the submissions of the learned counsel for the parties, I am inclined to hold that plaint can only be rejected if the contents thereof do no disclose a cause of action. In exercise of this jurisdiction, the Court is to look to the plaint only and no document of the defendant. In the instant case, the Courts below have taken into consideration the averments made in reply to the application for temporary injunction and the documents annexed thereto without providing an opportunity to the petitioners to challenge the genuineness or otherwise of those documents. The plaintiffs‑petitioners were within their right to establish their claim of gift alleged to have been made orally by adducing evidence. Clearly the Courts below have acted illegally in placing reliance on the documents tendered by the respondents in holding that there was no valid gift under the Muhammadan Law.

In view of the above, the revision petition is accepted, the impugned orders are set aside and the case is remanded to the trial Court for decision afresh in accordance with law. There shall, however, be no order as to costs. The parties are directed to appear before him on 19‑12‑1983 for further proceedings.

H.B.T. Revision petition accepted.

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