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Revision Application No. 101 of 1976, decided on 23rd November, 1986.
---S. 115 & O.VII, R.11--Rejection of plaint--Revisional jurisdiction, exercise of--While rejecting plaint under O.VII, R.11, C.P.C. Court, held, could only look to averments made by plaintiff in his plaint--Pleas raised by defendant in suit could not be taken into consideration while rejecting plaint--Where Courts below exceeded jurisdiction by rejecting plaint, High Court in exercise of revisional jurisdiction setting aside concurrent judgments of two Courts below remanded case to trial Court to decide afresh in accordance with law.
Nooruddin Sarki for Applicant.
A. Karim Lakhani for Respondent No.2.
Date of hearing: 23rd November, 1986.
This Revision Application under section 115, C.P.C. is filed against the two concurrent judgments of the Courts below. The admitted facts are that the applicant filed suit No.38/1973 for specific performance of an alleged agreement of sale entered into between the applicant and father of respondent No.1. Respondent No.3 who was later or. joined as defendant in the suit on his own application, moved an application under Order VII; Rule 11, C.P.C. for rejection of the plaint on the grounds that the suit is barred by limitation; the alleged agreement conferred no right title and interest on the applicant the alleged transaction is without consideration and that as the alleged transaction related to an evacuee property it was void in the absence of confirmation by the custodian of evacuee properties. The trial Court rejected the plaint after having reached the conclusion that the alleged agreement entered into between the applicant and late Dr. Assandas father of respondent No.1 did not amount to an agreement of sale as neither description of property was given therein nor sale consideration was mentioned in the alleged agreement. The two Courts below also reached the conclusion on the basis of the contention raised by respondent No.3 before them that the property was an evacuee property and as such jurisdiction of the civil Courts was barred under section 41 of the Pakistan Administration of Evacuee Property Act, 1957.
After hearing the learned counsel for the parties it is quite clear that the Courts below exceeded their jurisdiction in rejecting the plaint under Order VII, Rule 11, C.P.C. It has been pointed out time and again in series of decisions of Superior Courts 'that while rejecting a plaint under Order VII, Rule 11, C.P.C. the Court cans only look to the averments made by the plaintiff in his plaint. The pleas raised by a defendant in the suit cannot be taken into consideration while rejecting the plaint under Order VII Rule 11 C.P.C. There is nothing in the plaint of the suit to show that the property was an evacuee property. On the contrary according to the allegation made in the plaint late Dr. Assandas died in Pakistan after entering into the agreement of sale. It is equally unfortunate that the Courts below while dealing with application under Order VII Rule 11, C.P.C. also held that the alleged agreement entered into between the applicant and Assandas did not amount to an agreement of gale A and conferred no title; a finding which could only be recorded after evidence was available before the Court. If the Courts below would have applied their mind and cared to read the provision of Order VII Rule 11, C.P.C. minutely they would have certainly reached a different conclusion.
I accordingly accept this revision set aside the orders of the Courts below and remand the case back to the trial Court for decision of the suit in accordance with law within six months from the date of receipt of R & P. There will be no order as to costs.
H.B.T./B-14/K. Revision accepted/Order accordingly.
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