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Revision Applications Nos.41 and 42 of 1987, decided on 8th March, 1987.
---S.115, O.VII, R.11 & O.XXXIX, Rr.l & 2--Specific Relief Act (I of 1877), Ss.42 & 54--Suit for declaration and permanent injunction---Objection of plaint under O.VII, R.11 can only be made by Court on basis of averments in the plaint--First Appellate Court while rejecting plaint of applicants relying on defence taken by defendants in written statement filed in suit--Such action of First Appellate Court was clearly in excess of jurisdiction--Observation made by Court in judgment amounting to prejudging of whole suit was equally uncalled for as while hearing injunction application, Court should refrain from expressing any opinion with regard to merits of case which might ultimately prejudice the trial--Revision applications accepted, impugned order set aside and case remanded back to First Appellate Court.
Khizer Asker Zaidi for Applicant.
S. Saeed Akbar for Respondents.
Date of hearing: 8th March, 1987.
This order will govern the disposal of the above-noted two Revision Applications filed by Fakir Muhammad and Sher Muhammad respectively. Both the above applicants had instituted two separate suits for declaration and permanent injunction on the allegation that the plots in their respective possession have been regularised and as such the subsequent cancellation of the plots by the Karachi Metropolitan Corporation was wholly illegal and without jurisdiction. Alongwith the suits the applicants also filed applications for grant of temporary injunction which was allowed by the trial Court. Against the order of the trial Court granting temporary injunction during the pendency of the suits both respondents No.1 and 2 in the above Revisions filed two separate appeals. Learned first appellate Court while disposing of the above appeals also rejected the plaint in suit under Order 7 Rule 11 C.P.C. It is quite clear from the impugned order that the rejection of the plaint is based on the pleas which were raised by the defendants in their defence. It has been held time and again that rejection of the plaint under Order 7 Rule 11 C.P,.C. can only be made by the Court on the basis of averments in the plaint. As the learned first appellate Court while rejecting the p plaint of the applicants relied on the defence taken by the defendants in the written statement filed in the suits this action of the learned first appellate Court was clearly in excess of the jurisdiction. Apart from it the learned first appellate Court while allowing the appeal and rejecting the plaint of the applicants also made observation in the concluding paragraph of the judgment which amounted to pre-judging of the whole suit. This action on the part of the learned first appellate Court is equally uncalled for as while hearing injunction application the Court should refrain from expressing any opinion with regard to the merits of the case which may ultimately prejudice the trial. I accordingly accept these Revision Applications, set aside the impugned order and remand the case back to the first appellate Court with direction to dispose of appeals of respondents in accordance with the law in the light of the above observations.
It may be stated here that today the Revision Applications were fixed only for hearing of Miscellaneous Application but with the consent of the learned counsel for the parties heard the main Revisions and have disposed of the same as above. There will be no order as to costs. In view of the disposal of Main Petition, the miscellaneous application is also disposed of as stated above.
S.Q./F-7/K Case remanded.
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