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Civil Revision No.848 of 1986, decided on 30th June, 1987.

---O.VII, R.11--Rejection of plaint--"Cause of action"--Meaning of- Cause of action being a technical term, necessarily means right to sue and embraces all facts which are necessary to establish plaintiff's right to remedy which he had claimed--Term to be taken as synonymous with ultimate failure of a suit so as to say in anticipation that plaint disclosed no cause of action within meaning of O.VII, R.11, C.P.C.-- Plaintiff might or might not succeed in suit, yet it could not be said that plaint lacked basis on which parties could be taken to a trial.- [Words and phrases].

---O.V II , R .11 & S. 115--Rejection of plaint-- Revisional jurisdiction, exercise of--Trial Court looking carefully into averments made b plaintiff in plaint treated case as worth trying and framed issues--Such plaint lacking in computation of damages claimed by plaintiff, held, could not be rejected merely on that point as such point could be taken at the trial--Trial Court's refusal to reject plaint on application, filed by defendant in that respect, had not given rise to any defective exercise of jurisdiction so as to be interfered with within the scope of S.115, C.P.C.

Ashtar Ausaf Ali for Petitioners.

This' Civil Revision arises out of an application having beer, made by the petitioners under' Order VII, rule 11, C . P. C seeking the rejection of the plaint filed in a suit for the recovery o Rs.20,00,000 (Rupees Twenty Millions) as damages and compensation on account of the negligence of the petitioners resulting in the death of Syed Hussain Yousuf Kazmi and Syed Ali Mehdi Zaidi on the ground that, that disclosed no cause of action.

2. The case as set out in the plaint was that the petitioners during the annual closure of the Lahore Branch of C.B.D.C. (Lahore Canal) in silt clearance and lining, etc. in between the Mall Bridge: and Jail Road. Bridge failed to maintain the depth of the bed of the Canal as originally approved with the result that the bed had become uneven and at places much deeper. Syed Hussain Yousuf Kazmi aged 15/16 years and Syed Ali Mehdi Zaidi aged 14/15 years while bathing near Shanan Road Bridge lost their lives on 27-3-1984 by drowning in the Canal due to the uneven, irregular and acute depth of the canal the cause of which being the failure of the petitioners out of culpable negligence and tortuous act to keep the channel according to its approved level and standard. The measure of damages was a plain demand of Rupees Twenty Millions.

3. The petitioners in their application maintained that the perusal of the plaint did not disclose any cause of action. The deceased were themselves negligent. in going for a bath in the canal knowing full well that the canal bath was dangerous for life. There was a promulgation under Section 144, Cr.P C from the year 1982 according to which bathing and swimming in the canal was an offence. The petitioners had installed caution Boards from Jail Road to Mall Road where the incident occurred. The petitioners were in no way responsible for any damage sustained by the respondents. The damages as claimed had not been accounted for. The deceased had no legal right to use the canal for bathing purpose. The respondents had not disclosed what civil rights had been infringed by the petitioners.

4. The respondents opposed the application so moved by maintaining mainly that the plaint did disclose a cause of action. The application for rejection of the plaint was not maintainable since that projected out the defence of the petitioners.

5. The learned Civil Judge dismissed the application vide his order, dated 6-1-1986 after observing that, that was an established law that before rejecting a plaint, the court was to look into the averments made in the plaint. The defence taken by the other party was not to be looked into. The plaint however, was to be looked into carefully. The facts constituting the cause of action had been given the plaint where that had been clearly mentioned that both the children lost their lives due to the negligent and tortuous act of the petitioners. The facts as set out in the plaint needed consideration and required evidence.

6. The learned counsel for the petitioners has contended that the plaint discloses no cause of action, therefore, there is no idea to continue the proceedings on such a plaint. He has re-emphasized all the points taken in the application for rejection of the plaint.

7. A cause of action being a technical term necessarily means right to sue i.e. to embrace all the facts which are necessary to the plaintiff's right to the remedy which he claims and in turn that is not to be taken as synonymous with the ultimate failure of a suit so as to say in anticipation that a plaint discloses no cause of action. The necessary facts as to the alleged negligence and the result of that have been set out towards the liability. The respondents ma or may no succeed in their suit yet it cannot be said that the plaint lacks the basis on which the parties can be taken to a trial as to matter. The case as set up by the petitioners in their application can best be pleaded in the defence rather than to be urged for the rejection of the plaint.

This Court has been apprised of the fact that the learned Civil Judge has framed the issues so he has treated the case as worth trying. A perusal of the plaint shows that in that behalf the learned Civil Judge has not proceeded without any basis. So far as the plaint lacks the adoption of the measure of damages or the computation of the damages aimed such a point can be taken at the, trial suffice it to say that the learned Civil Judge's refusal .to reject the plaint has not given rise to any defective exercise of jurisdiction so as to be interfered with in the scope of Section 115, C.P.C. This civil revision is, therefore, dismissed in limine.

H. B. T. /P-23/L Revision dismissed

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