Find a Lawyer

Revision. Application No. 226 of 1983, decided on 26th April, 1987.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑Territorial jurisdiction‑‑Trial Court finding that it has no territorial jurisdiction rejected plaint‑ Proper course for trial Court, held, was to return plaint for presentation before a Court having jurisdiction and not to reject same.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑ Non‑joinder of party‑‑If trial Court finds that necessary party has not been impleaded it should allow plaintiff to implead that party but should not reject plaint on that score.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑Although provisions contained in 0. VII, R. 11, C.P.C. enable Court to reject a plaint at a nascent stage, yet such power must be exercised with great circumspection and care‑‑Case must fall within mischief of one of clauses of R.11, O.VII, C.P.C. or the other.

‑‑‑O. VII, R. 11‑‑Trial Court, on objections raised by defendant that it had no territorial jurisdiction and that necessary party was not impleaded by plaintiff, rejected plaint‑‑Held, objections raised by defendants could have been dealt with by trial Court at a proper stage of proceedings, and same did not warrant rejection of plaint under O. VII, R. 11, C.P.C.

G.H. Malik for Applicant.

Syed Sibghatullah Hamid for Respondents.

Date of hearing: 6th April, 1987.

This Revision application is directed against the judgment passed by the learned Third Additional District Judge, Karachi, dated 25‑5‑1983 dismissing the applicant's appeal and upholding the order passed by the learned Sixth Senior Civil Judge, Karachi, dated 31‑5‑1981.

The facts giving rise to this revision, briefly stated, are that the applicant filed a suit for pre‑emption and cancellation of sale which had taken place on 22‑10‑1979 in respect of house No.67/1 situated at Jivan Street, Ramswami, Karachi as the property had been jointly owned by the applicant with other members of his family. A sale of this property was negotiated by one Qaim Khan, who admittedly was one of the joint owners of the property and according to the applicant the property was finally sold to the respondents on 22‑10‑1979.

During the pendency of the suit the respondents filed an application under Order VII, Rule 11, C.P.C. raising therein a number of objections, the following being relevant for the purpose of this revision application. First of all, the suit, according to the respondents was not maintainable for non‑joinder of necessary party, as Qaim Khan who had sold the property to the respondent was a necessary party. Secondly, no cause of action had accrued to the applicant for filing of the suit as firstly law of pre‑emption was not applicable to the city of Karachi, and secondly, the legal formalities for enforcing such right had not been complied with by the applicant. The last objection taken by the respondents was in respect of the territorial jurisdiction of the learned Civil Court as according to him, the territorial jurisdiction of the Civil Court did not extend to the area where the suit property was situate.

The learned Civil Judge appears to have been impressed by these objections as the plaint was rejected by him. The applicant filed appeal before the learned Third Additional District Judge, Karachi, but there also he failed to succeed as the order passed by the learned Civil Judge was maintained.

I have heard Mr. G . H . Malik, learned counsel for the applicant and Mr. S.S. Hamid, learned counsel for the respondents.

According to Mr. G.H. Malik, learned counsel for the applicant, both the learned subordinate Courts have acted erroneously while upholding objections of the respondents and rejecting the plaint and the contention does not appear to be without substance.

First of all, let us examine the question in regard to the territorial jurisdiction of the learned Civil Court. Now, even if the learned Civil Judge was of the opinion that he did not possess territorial jurisdiction in the matter, the plaint could not have been rejected by him. In that case, the only proper course to be followed by the learned Civil Judge was to return the plaint to the applicant for presentation before the Court having jurisdiction in the matter.

The next ground which lead to the rejection of the plaint by the learned Civil Judge, was in respect of non‑joinder of a necessary party, as Qaim Khan who had sold the property to the respondents had not been joined as a defendant in the suit. Again, the plaint could not have been rejected on the basis of this objection, because the applicant could always be allowed to join Qaim Khan as a party to the suit.

Turning to the last ground, it has been held by the learned Civil Judge that the law of pre‑emption is not applicable to the City of Karachi. Reference to Mulla's Principles of Muhammadan Law, Twelfth Edition, page 194, indicates that except in Madras Presidency the law of pre‑emption was applied by the Courts in British India to Muslims as a matter of "Justice, equity and good conscience". However,

Revision. Application No. 226 of 1983, decided on 26th April, 1987.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑Territorial jurisdiction‑‑Trial Court finding that it has no territorial jurisdiction rejected plaint‑ Proper course for trial Court, held, was to return plaint for presentation before a Court having jurisdiction and not to reject same.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑ Non‑joinder of party‑‑If trial Court finds that necessary party has not been impleaded it should allow plaintiff to implead that party but should not reject plaint on that score.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑Although provisions contained in 0. VII, R. 11, C.P.C. enable Court to reject a plaint at a nascent stage, yet such power must be exercised with great circumspection and care‑‑Case must fall within mischief of one of clauses of R.11, O.VII, C.P.C. or the other.

‑‑‑O. VII, R. 11‑‑Trial Court, on objections raised by defendant that it had no territorial jurisdiction and that necessary party was not impleaded by plaintiff, rejected plaint‑‑Held, objections raised by defendants could have been dealt with by trial Court at a proper stage of proceedings, and same did not warrant rejection of plaint under O. VII, R. 11, C.P.C.

G.H. Malik for Applicant.

Syed Sibghatullah Hamid for Respondents.

Date of hearing: 6th April, 1987.

This Revision application is directed against the judgment passed by the learned Third Additional District Judge, Karachi, dated 25‑5‑1983 dismissing the applicant's appeal and upholding the order passed by the learned Sixth Senior Civil Judge, Karachi, dated 31‑5‑1981.

The facts giving rise to this revision, briefly stated, are that the applicant filed a suit for pre‑emption and cancellation of sale which had taken place on 22‑10‑1979 in respect of house No.67/1 situated at Jivan Street, Ramswami, Karachi as the property had been jointly owned by the applicant with other members of his family. A sale of this property was negotiated by one Qaim Khan, who admittedly was one of the joint owners of the property and according to the applicant the property was finally sold to the respondents on 22‑10‑1979.

During the pendency of the suit the respondents filed an application under Order VII, Rule 11, C.P.C. raising therein a number of objections, the following being relevant for the purpose of this revision application. First of all, the suit, according to the respondents was not maintainable for non‑joinder of necessary party, as Qaim Khan who had sold the property to the respondent was a necessary party. Secondly, no cause of action had accrued to the applicant for filing of the suit as firstly law of pre‑emption was not applicable to the city of Karachi, and secondly, the legal formalities for enforcing such right had not been complied with by the applicant. The last objection taken by the respondents was in respect of the territorial jurisdiction of the learned Civil Court as according to him, the territorial jurisdiction of the Civil Court did not extend to the area where the suit property was situate.

The learned Civil Judge appears to have been impressed by these objections as the plaint was rejected by him. The applicant filed appeal before the learned Third Additional District Judge, Karachi, but there also he failed to succeed as the order passed by the learned Civil Judge was maintained.

I have heard Mr. G . H . Malik, learned counsel for the applicant and Mr. S.S. Hamid, learned counsel for the respondents.

According to Mr. G.H. Malik, learned counsel for the applicant, both the learned subordinate Courts have acted erroneously while upholding objections of the respondents and rejecting the plaint and the contention does not appear to be without substance.

First of all, let us examine the question in regard to the territorial jurisdiction of the learned Civil Court. Now, even if the learned Civil Judge was of the opinion that he did not possess territorial jurisdiction in the matter, the plaint could not have been rejected by him. In that case, the only proper course to be followed by the learned Civil Judge was to return the plaint to the applicant for presentation before the Court having jurisdiction in the matter.

The next ground which lead to the rejection of the plaint by the learned Civil Judge, was in respect of non‑joinder of a necessary party, as Qaim Khan who had sold the property to the respondents had not been joined as a defendant in the suit. Again, the plaint could not have been rejected on the basis of this objection, because the applicant could always be allowed to join Qaim Khan as a party to the suit.

Turning to the last ground, it has been held by the learned Civil Judge that the law of pre‑emption is not applicable to the City of Karachi. Reference to Mulla's Principles of Muhammadan Law, Twelfth Edition, page 194, indicates that except in Madras Presidency the law of pre‑emption was applied by the Courts in British India to Muslims as a matter of "Justice, equity and good conscience". However,

Revision. Application No. 226 of 1983, decided on 26th April, 1987.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑Territorial jurisdiction‑‑Trial Court finding that it has no territorial jurisdiction rejected plaint‑ Proper course for trial Court, held, was to return plaint for presentation before a Court having jurisdiction and not to reject same.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑ Non‑joinder of party‑‑If trial Court finds that necessary party has not been impleaded it should allow plaintiff to implead that party but should not reject plaint on that score.

‑‑‑O. VII, R. 11‑‑Rejection of plaint‑‑Although provisions contained in 0. VII, R. 11, C.P.C. enable Court to reject a plaint at a nascent stage, yet such power must be exercised with great circumspection and care‑‑Case must fall within mischief of one of clauses of R.11, O.VII, C.P.C. or the other.

‑‑‑O. VII, R. 11‑‑Trial Court, on objections raised by defendant that it had no territorial jurisdiction and that necessary party was not impleaded by plaintiff, rejected plaint‑‑Held, objections raised by defendants could have been dealt with by trial Court at a proper stage of proceedings, and same did not warrant rejection of plaint under O. VII, R. 11, C.P.C.

G.H. Malik for Applicant.

Syed Sibghatullah Hamid for Respondents.

Date of hearing: 6th April, 1987.

This Revision application is directed against the judgment passed by the learned Third Additional District Judge, Karachi, dated 25‑5‑1983 dismissing the applicant's appeal and upholding the order passed by the learned Sixth Senior Civil Judge, Karachi, dated 31‑5‑1981.

The facts giving rise to this revision, briefly stated, are that the applicant filed a suit for pre‑emption and cancellation of sale which had taken place on 22‑10‑1979 in respect of house No.67/1 situated at Jivan Street, Ramswami, Karachi as the property had been jointly owned by the applicant with other members of his family. A sale of this property was negotiated by one Qaim Khan, who admittedly was one of the joint owners of the property and according to the applicant the property was finally sold to the respondents on 22‑10‑1979.

During the pendency of the suit the respondents filed an application under Order VII, Rule 11, C.P.C. raising therein a number of objections, the following being relevant for the purpose of this revision application. First of all, the suit, according to the respondents was not maintainable for non‑joinder of necessary party, as Qaim Khan who had sold the property to the respondent was a necessary party. Secondly, no cause of action had accrued to the applicant for filing of the suit as firstly law of pre‑emption was not applicable to the city of Karachi, and secondly, the legal formalities for enforcing such right had not been complied with by the applicant. The last objection taken by the respondents was in respect of the territorial jurisdiction of the learned Civil Court as according to him, the territorial jurisdiction of the Civil Court did not extend to the area where the suit property was situate.

The learned Civil Judge appears to have been impressed by these objections as the plaint was rejected by him. The applicant filed appeal before the learned Third Additional District Judge, Karachi, but there also he failed to succeed as the order passed by the learned Civil Judge was maintained.

I have heard Mr. G . H . Malik, learned counsel for the applicant and Mr. S.S. Hamid, learned counsel for the respondents.

According to Mr. G.H. Malik, learned counsel for the applicant, both the learned subordinate Courts have acted erroneously while upholding objections of the respondents and rejecting the plaint and the contention does not appear to be without substance.

First of all, let us examine the question in regard to the territorial jurisdiction of the learned Civil Court. Now, even if the learned Civil Judge was of the opinion that he did not possess territorial jurisdiction in the matter, the plaint could not have been rejected by him. In that case, the only proper course to be followed by the learned Civil Judge was to return the plaint to the applicant for presentation before the Court having jurisdiction in the matter.

The next ground which lead to the rejection of the plaint by the learned Civil Judge, was in respect of non‑joinder of a necessary party, as Qaim Khan who had sold the property to the respondents had not been joined as a defendant in the suit. Again, the plaint could not have been rejected on the basis of this objection, because the applicant could always be allowed to join Qaim Khan as a party to the suit.

Turning to the last ground, it has been held by the learned Civil Judge that the law of pre‑emption is not applicable to the City of Karachi. Reference to Mulla's Principles of Muhammadan Law, Twelfth Edition, page 194, indicates that except in Madras Presidency the law of pre‑emption was applied by the Courts in British India to Muslims as a matter of "Justice, equity and good conscience". However, it has been argued by Mr.S.S.Hamid, learned counsel for the respondents that the law of pre‑emption could not be applied in a large city like Karachi. Reliance was placed by him on A I R 1923 All. 513. In that case the law of pre‑emption was not applied to a property situated in Allahabad.

Although the provisions contained in Order VII, Rule 11, C.P.C. enable the Court to reject a plaint at a nascent stage, but such power must be exercised with great circumspection and care. In the present case I have no doubt in my mind that the learned Civil Judge proceeded with undue haste while rejecting the plaint under Order VII, Rule 11, C.P.C. The objection raised by the respondents might have appeared to be forceful, but the same did not call for rejection of the plaint under Order VII, Rule 11, C.P.C. The mere fact that suit for pre‑emption was not maintainable as a matter of public policy would certainly not bring the case within the purview of Rule 11 of Order VII, C.P.C. Because in order that the same should apply the case should strictly fall within the mischief of one of its clauses. Such clearly was not the case in the present matter. However, while still supporting the order passed by the learned Civil Judge, Mr. S.S. Hamid pointed out that correct procedure had not been adopted by the applicant while exercising his right of pre‑emption because Talab‑i‑mowasibat admittedly was made by the applicant before the sale of the property and not thereafter. Reference was again made by the counsel to the commentary by Mullah. Twelveth Edition, section 186, at page 205.

Be that as it may, but in my opinion these objections could have been dealt with by the learned trial Court at a proper stage of the proceedings. In no case the same warranted rejection of the plaint under Order VII, Rule 11 by the trial Court.

I am consequently of the view that the plaint could not have been rejected by the learned trial Court and therefore I allow this revision and set aside the order, and the judgment, dated 31‑5‑1981 and 25‑5‑1983 respectively passed by the learned Civil Judge and the learned Third Additional District Judge, Karachi. There will however, be no order as to costs in view of the questions raised in this revision.

M.Y.H./S‑38/K Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.