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Civil Revision Application No.32 of 1979, decided on 13th October, 1986.

---O.VII, R.11--Sind Public Property (Removal of Encroachment) Act (V of 1975), S.11--Trial Court finding plaint beyond pecuniary jurisdiction, returning it to plaintiff for presentation in proper Court--District Judge on appeal found return of plaint as improper but instead of sending case back to Trial Court for disposal according to law, itself reaching conclusion that suit was barred under provisions of Sind Act V of 1975 and rejected plaint under O.VII, R.11, C.P.C.- Order of Appellate Court rejection plaint was set aside and plaint was directed to be deemed to be pending before Trial Court for disposal according to law.

Gulab M. Rang for Petitioner.

S.H. Kizilbash for Respondents Nos.1 and 2.

Akhtar Hussain for Respondents Nos.3 to 31.

The petitioner has challenged in this Revision Application the order of the 1st Additional District Judge, Karachi, dated 13-1-1979 passed in Civil Misc. Application No.294 of 1978, rejecting the plaint of the petitioner under Order 7 Rule 11 C.P.C.

The petitioner who secured allotment of two flats sites bearing No.FL-6 and FL-8 in Scheme No.24, instituted Suit No.1574/78 before the 1st Senior Civil Judge, Karachi, challenging the notice, dated 16-1-1978 and consequent cancellation, dated 21-2-1978 of the aforesaid two flats sites by the respondents No.l and 2. The learned trial Court on an application under Order 7 Rule 11 moved by the respondents for rejection of the plaint came to the conclusion that the suit is beyond the pecuniary jurisdiction of the Court and accordingly ordered for return of the plaint to the petitioner for presentation in proper Court. The order passed by the trial Court returning the plaint to the petitioner was challenged before the first appellate Court who came to the conclusion that the order directing return of the plaint passed by the trial Court was not proper but instead of sending back the case to the trial Court for disposal according to law himself reached the conclusion that the suit is barred under the provisions of Sind Act V of 1975, and rejected the plaint under the Order 7 Rule 11 C.P.C. Learned counsel for the petitioner contends that the order rejecting the plaint under Order 7 Rule 11, C.P.C. passed by the first appellate Court is wholly without jurisdiction as there was no plaint before the Court which could be rejected. It is contended, that the learned first appellate Court having reached the conclusion that the order passed by the trial Court returning the plaint under Order 7 Rule 10, C.P.C. was not proper, should have sent back the case to the trial Court with direction to dispose of the suit in accordance with the law. Learned counsel for the respondents though did not dispute the correctness of the above contention of petitioner submitted that as the jurisdiction exercised by this Court in revision is equitable one it may not be exercised in favour of the petitioner in spite of illegality in the order of Courts below if it is found that the petitioner has acted in an unfair manner in the case. To support their contention that the conduct- of the petitioner in the case was not clear and fair the learned counsel for the respondents No.1 and 2 after consulting his official files stated that the petitioner after obtaining the allotment of the two flats site referred to above got it converted for construction of two houses and then offered the sub-divided plots for sale to public and in this process made multiple allotments other same plot to several persons and thus managed to collect lot of money from public and went into hiding. It is further stated by the learned counsel that when irregularities were discovered by respondent No. 3, its governing body on 15-7-1979 allotted Flats site FL-6 to allottees who hail first paid money to the petitioner and also executed regular lease deeds in favour of such allottees. It is also stated by the learned counsel for the Respondents No.1 and 2 that with regard to site No.FL-8 the K.D.A. has taken steps as far as possible to accommodate those allottees who had priority of their claim. The above facts stated by the learned counsel for the Respondents No.1 and 2 are also supported by the other respondents who were initially intervenors in the present Revision Application that were joined by consent in the proceedings. However, these facts are neither presently borne out from the record nor these facts are the basis of the impugned order and therefore cannot form the basis of the decision of the present Revision Application. The respondent may place all these facts before the trial Court if so advised in proper form for consideration. The contention of the petitioner in the case before me is that the 1st Appellate Court having found the return of the plaint under Order 7 Rule 10, C.P.C. by the trial Court as improper, should have remanded the case instead of rejecting the plaint itself under Order 7 Rule 11, C.P.C. This contention is not open to any exception and I am of the view that the learned first appellate Court after it reached the conclusion that the plaint was wrongly ordered to be returned to the petitioner, should have only remitted the case back to the trial Court for disposal according to law. I accordingly accept this Revision Application, set aside the order of the first appellate Court and direct that the plaint be deemed to be pending before the trial Court which will be disposed of in accordance with law. As the suit was originally filed in the year 1978, I further direct the parties to appear before the trial Court on 10th November, 1986 on which date the trial Court will take further proceedings in the case in accordance with the law. There will be no order as to costs in the circumstances of the case.

M.Y.H./A-52/ K Petition accepted.

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