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Application No. 109 of 1980, decided on 16th October, 1986.

‑‑‑0. VII, R. 11‑‑Rejection of plaint‑‑Only averments made by plaintiff in his suit can be looked into for rejection of plaint‑‑Plea raised by a party in defence can be considered at stage of consideration of an application under 0. VII, R. 11, C.P.C.

‑‑‑0. VII, R. 11 & S. 115‑‑Revision‑‑Rejection of application under 0. VII, R. 11, C.P.C.‑‑Contention raised by petitioner against rejection of application under 0. VII, R. 11, C.P.C. relating to question of fact which could be decided by Court after evidence was recorded in suit‑ Interference declined in revision.

National Commercial Bank Limited v. Muhammad Tufail and others P L D 1975 Kar. 671 and Sofa Bank Ltd. v. Quickways, etc. P L D 1951 Sind 19 ref.

Muhammad Shareef Khattak for Appellant.

Inamul Haque for Respondent.

Date of hearing: 16th October, 1986.

This Revision Application under section 115, C.P. C. is filed by the applicant /defendant No. 2 against the order, dated 27‑3‑1980. By the impugned order, the applicant /defendant No. 1 who was granted leave to defend the suit was directed to file his written statement, and then, if he was so advised to file a proper application under Order VII, Rule 11, C.P.C. and his application under Order VII, Rule 11, C.P.C. was rejected with the above observations. Mr. Muhammad Shareef Khattak, learned counsel for the applicant, contends that the order, rejecting the application of the applicant under Order VII, Rule 11, C.P.C. amounted to failure of exercise of the jurisdiction by the Court vested in it by law. It is contended that the material on record established that the letter of guarantee, alleged to have been executed by the applicant, was of a different date than the date of the loan which sufficiently proved the dubious nature of transaction. It is also contended that, as the defendant No. 1 (respondent No. 2 in the present proceedings was not traceable, the suit could not be maintained against the applicant, who is only a guarantor. In support of his contention, that a suit cannot be filed against a guarantor in the absence of the principal debtor, the learned counsel has relied on the cases of National Commercial Bank Limited v. Muhammad Tufail and others P L D 1975 Kar. 671 and Sofa Bank Ltd. v. Quickways, etc. P L D 1951 Sind 19. I am afraid that none of the contentions raised by the learned counsel for the petitioner can be considered at this stage. It is settled law that, while seeking rejection of the plaint under Order VII, Rule 11, C.P.C. only the averments made by the plaintiff in his suit can be looked into. The pleas raised by a party in defence cannot be considered at the stage of consideration of an application under Order VII, Rule A 11, C . P . C . I have read the plaint in the' suit with the assistance of Mr. Muhammad Shareef Khattack in this case, and, after reading the plaint, it cannot be said that the averments in the plaint are not sufficient to disclose a cause of action against defendant No. 1. The plea of the petitioner, that the principal debtor is a fictitious person, or that the letter of guarantee having been executed on a date subsequent to the date of the grant of the loan which shows that it B was a fictitious deal itself, are all questions of fact, which can only be decided by the Court after evidence is recorded in the suit. At this stage, the learned Judge rightly declined to go into these contentions. No case for interference is made out. The petition is accordingly dismissed, but, in the circumstances of the case, I will make no order as to costs. However, the rejection of this application will not debar the petitioner from raising any of the contentions, which he has urged before me, in the written statement, which he may file before the trial Court.

M. Y. H. /5151/K ‑‑‑‑ ‑ Petition dismissed.

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