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---S. 115 and O.VII, r.11--Rejection of plaint--Requirements--Plaint rejected on pleas raised in written statement--All pleas raised in written statement required evidence and could not be outright assumed to be true--Where plaint showed cause of action by invoking contract between parties, vires of such contract, held, could be considered only after framing issue--Denial made in written statement could not afford ground for rejection of plaint--Allegation made in plaint should be kept in mind irrespective of its legal defects pointed out in defence--Rejection of plaint on being influenced by written statement was not lawful.

Dr. Abdul Basit for Petitioner.

Ch. Mushtaq Ahmad Khan for Respondent.

Date of hearing: 5th June, 1985.

This revision as also No. 146/84 arose from the same order dated 19-1-1984 of the learned Additional District Judge, Gujranwala, whereby he passed two-pronged order, namely of setting aside the rejection of the plaint and upholding the refusal to allow temporary injunction. The latter portion was the subject-matter of the other revision which has been separately disposed of by an order of even date.

2. The respondent-plaintiff claimed in the suit that he was entitled to hold in perpetuity a private cattle market every week within the limits of the petitioner-Town Committee, Ghakhar, by virtue of an agreement dated 6-1-1971 executed in his favour. Apprehending that the lease was being auctioned by the petitioner-Committee, he brought the present suit for permanent injunction in order to restrain it from leasing it out to anyone else and preventing him from -holding it under the agreement. Alongwith the suit he made an application for temporary injunction.

3. The suit as also the prayer for temporary injunction were contested seriously by the petitioner-Committee denying the alleged contract. It was pleaded that instead the right to hold the market was leased out last year to one Muhammad Naseer and was being convened this year by the Committee itself. The so-called agreement set up by the respondent-plaintiff was claimed to be fictitious and based upon fraud.

4. The learned Civil Judge while considering the temporary injunction rejected the plaint mainly relying upon the plea raised in defence by the petitioner-Committee. The respondent preferred an appeal and the learned Additional District Judge noting that rejection of plaint could not be ordered on the basis of plea raised in defence accepted the

appeal and remanded the case as aforesaid for. re-decision after framing issues and taking evidence.

5. The petitioner-Committee feeling aggrieved of the appellate order has preferred the present Revision.

6. Dr. Abdul Basit, Advocate for the petitioner laid considerable stress upon the fact that the so-called agreement was not at all signed by the Chairman; was opposed to law in that the representative body like the petitioner could not give anything in perpetuity to anyone; under the by-laws such a contract could be given maximum for a year; the contract was not acted upon as the respondent did not hold the market eversince; there being no consideration amount, it was at best a licence which could be revoked at any time and lastly that the site reserved for holding the market belonged to the Committee which could not be prevented from carrying out its public duties by using it for the purpose.

7. Ch Mushtaq Ahmad Khan, Advocate supporting the order of remand submitted that the plea advanced in written statement cannot be utilized for rejecting the plaint as it had to be considered exclusively on its own contents. The order of the trial Court shows that it was unduly influenced by the pleas raised in the written statement and it acted entirely thereon to reject the plaint. All those points more or less were of fact needing evidence and could not be outright assumed to be correct. Evidence was needed for and against them and without the same the trial Court was not justified in accepting all of them straightaway. Conversely speaking the plaint itself discloses a cause of action in having invoked a contract. Its vires can be considered only after framing an issue but its denial made in the written statement cannot afford a ground for rejection of the plaint. The allegation made in the plaint in regard to it shall alone be kept in mind irrespective of its legal defects pointed out in defence and thus from this view of the matter the order of the trial Court was not much lawful. The learned Additional District Judge Was right in setting it aside and asking for recording evidence on the relevant points.

8. There is no merit in the Revision petition and the same is dismissed.

A.A. Revision dismissed.

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