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Revision Application No. 370 of 1986, decided on 10th December, 1986.

‑‑‑O. VII, R. 10‑‑Return of plaint‑‑Order for‑‑Legality‑‑Mention of name of defendant in plaint along with his official designation‑‑Effect‑ Neither any averment in plaint nor any material on record available before Trial Court to conclude that suit against defendant was filed in his official capacity‑‑Mere fact that name of defendant was mentioned alongwith his designation showing him as official of Government, held, would not necessarily mean that defendant was sued in his offal capacity‑‑Order of Trial Court affirmed by Appellate Court below for returning plaint under O. VII, R. 10, C.P. C. on ground that suit was not cognizable by Trial Court it being a Court of Second Class Civil Judge as same was filed against Government official, was improper in circumstances.

‑‑O. VII, R. 10 & O. XXXIX, Rr. 1 & 2‑‑Return of plaint‑‑Order for‑‑Legality‑‑Order of Trial Court and affirmed by Appellate Court below for return of plaint under O. VII, C.P.C. assuming lack of jurisdiction to try suit passed at time when only injunction application was argued before Court and there was no material evidence before it to reach such conclusion, except affidavit and counter‑affidavit of parties, held, could not be sustainable‑‑Court if was of opinion that it had no jurisdiction in the matter, it could strike preliminary issue in that respect and after recording evidence thereon if it was satisfied that it had no jurisdiction to try suit, it could only then pass such order.

Gul Zaman Khan for Appellant.

Faizuddin for Respondent.

Date of hearing: 10th December, 1986.

This revision application under section 115, C.P.C. is directed against the order of the District Judge, Karachi East, whereby he upheld the order of the trial Court, returning the plaint in Suit No. 963/1986 under Order VII, Rule 10, C . P. C .

The appellant instituted Suit No. 963/1986 for permanent injunction on the allegation that he is in the lawful control and management of the mosque known as "Masjid Maz Bin Jabal and Madarsa Binoria Qasmi Aloom, situated in Gulshan‑e‑Iqbal, Karachi, and that the respondent is allegedly interfering with his right of management of the said mosque. Along with the suit, an interim application under Order XXXIX, Rules 1 and 2, C.P.C. was filed, which was heard by the Court. However, while writing the order on the injunction application, the learned trial Court reached the conclusion that, as in the title of the suit the defendant is shown as the Principal of PCSIR Institute, therefore, the suit was against a Government official, and, as such, it is not cognisable by a Court of 2nd Class Civil Judge. He accordingly returned the plaint for presentation in the proper Court. Against the above order, the applicant preferred an appeal under Order XLIII, C . P. C . but this appeal was also dismissed by the learned District Judge East. After hearing the learned Counsel for the applicant and learned Counsel for the respondent, who is present on pre‑admission notice, I have admitted this revision application to regular hearing, and it is disposed of as follows:‑------

The order passed by the learned trial Court as well as by the learned First appellate Court; returning the plaint under Order VII, rule 10, C.P.C is not a proper order. The mere fact that the name of the defendant is mentioned along with his designation does not necessarily mean that the defendant is sued in his official capacity. I have read the plaint in the above suit with the assistance of the learned counsel for the parties, and I do not find any averment in the plaint which can be construed as showing the defendant as an official of the Government. There was no material on record before the trial Court to reach the conclusion that the suit was filed against the defendant in his official capacity. It is an admitted position that the plaint in the suit was returned at the time when only the injunction application was argued before the Court, and no evidence was recorded till that time in the suit. In these circumstances, I am of the view that the return of the plaint by the trial Court was improper. However, it is still open to the trial Court, if it is of the view that it has no jurisdiction in the matter, to strike a preliminary issue in the case, and, after recording evidence on that issue, if it is satisfied that the suit is not cognisable by the Court of second class Civil Judge, he can pass such order thereon as is permitted by law. The order, which was passed by the learned trial Court could not be sustained for the reason that, at the time he passed the above order, he had no material before it, except the affidavits and counter‑affidavits filed by the parties in connection with the application under Order XXXIX, Rules 1 and 2, C.P.C. The Revision Application is accordingly allowed. The orders of the two Courts below are set aside, and the case is remanded back to the trial Court with direction to dispose of the pending application under Order XXXIX, Rules 1 and 2, C.P.C. as well as any other application, which may be filed by the respondent, or the petitioner in the case in accordance with the law. There will be no order as to costs. The parties' are directed to appear before the trial Court on 23rd December, 1986.

H . B . T . /5118/ K Revision application allowed

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