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Petitioner: MUHAMMAD JAVED VS Respondent: KARACHI COOPERATIVE HOUSING SOCIETIES UNION Ltd.Honorable Justice Saeeduzzaman SiddiquiYousuf,Shah Jamil Alam and M.M. Mahmoodi
1988 M L D 255
1988 M L D 255
[Karachi]
Before Saeeduzzaman Siddiqui, J
MUHAMMAD JAVED and 4 others--Petitioners
versus
KARACHI COOPERATIVE HOUSING SOCIETIES UNION Ltd. and 3 others--Respondents
Civil Revision Application No. 195 of 1981 decided on 1st October, 1987.
(a) Civil Procedure Code (V of 1908)--
--O0. VII, R.11--Rejection of plaint--Court while deciding application under O. VII, R. 11, C.P.C., has only to look into averments made in plaint and upon acceptance of what is stated in plaint as correct, if it is found that no relief could be granted to plaintiff, it is only then that plaint could be rejected under O. VII, R. 11, C.P.C: -Court is not entitled to consider pleas which are raised by defendant in his defence to claim in suit at stage of consideration of application under O.VII, R. 11, C.P.C.
(b) Civil Procedure Code (V of 1908)--
---O. VII, R. 11--Rejection of plaint--Written statement not filed by respondents defendants in case at time of rejection of plaint: -Order of rejection passed by Courts below set aside and case remanded to trial Court with direction to give an opportunity to respondents to file their written statement in case and on basis of controversy which might be raised in written statement, issues be framed and decided by trial Court after recording evidence of parties.
Yousuf for Applicants.
Shah Jamil Alam and M.M. Mahmoodi for respondent No. 1.
Respondents Nos. 3 and 4 (absent).
Date of hearing: 1st October, 1987.
JUDGMENT
By this Revision Application under Section 115, C.P.C. the applicant has challenged the two concurrent judgments of the Courts below whereby the plaint in Suit No. 2127 of 1980 instituted by the applicant/plaintiff was rejected under Order 7, Rule 11 C.P.C. The only contention raised by the learned counsel for the applicant in support of the Revision Application is that the Courts below exceeded their jurisdictions in rejecting the plaint and holding it as barred under M.L.O. 34 and Section 70-A of the Cooperative Societies Act as in doing so the Courts below relied and took into consideration the pleas raised by respondents Nos. 1 and 2 in their defences. Mr. Shah Jamal Alam and M. M. Mahmoodi, on the other hand contended that although it is not disclosed in the plaint by the plaintiff/applicant that the plots allotted to them were originally amenities plots but in view of the fact that the allotments in favour of the plaintiff/applicant were made subsequent to the cancellation of the allotment of same under MLO 34, the suit was not maintainable. After hearing the learned counsel for the parties I am convinced that the decision of the Courts below in rejecting the plaint under Order 7, Rule 11, C.P.C. was based upon consideration of the pleas raised by the defendants in defence. It is settled law that a Court while deciding the application under Order 7 Rule 11 C.P.C. has only to look into the averments made in the plaint and upon acceptance of what is stated in the plaint as correct if it is found A that no relief could be granted to the plaintiff it is only then that the plaint could be rejected under Order 7, Rule 11, C.P.C. At the stage of consideration of application under Order 7, Rule 11, C.P.C. the Court is not entitled to consider the pleas which arc raised by the defendants in their defence to the claim in suit. I am informed by the learned counsel for the applicants that at the time of rejection of the plaint even the written statement was not filed by the respondents in the case. I, accordingly, allow this Revision Application, set aside the judgments and decrees passed by the two Courts below and remand the case back to the trial Court with the direction that an opportunity be given to respondents to file their written statement in the case and on the basis of controversy which B may be raised in the written statement the Court may frame issues including an issue with regard to jurisdiction of the Court and decide the same after recording evidence of the parties either as a preliminary issue or alongwith other issues in the suit as the Court may think proper. There will be no order as to costs. M.Y.M/M-508/K.
Case remanded