' This judgment shall be read in Civil Revision No,134 of 2002 as the aforesaid civil revision proceeds on common ground involving common controversy in Civil Revision No,135 of 2002.
2. Shortly narrated the facts leading to the filing of instant civil revision are that by virtue of Sale Mutation No,197 attested on 29-6-1999, suit-land bearing Khata Nos.583 and 589 situated in the area of Mouza Pai, Tehsil and District Tank, owned by Muhammad Naseer was purchased by Sarwar Khan, vendee-defendant for an ostensible sale consideration of Rs.1,80,000.
3. Habibullah, plaintiff instituted suit against Sarwar Khan defendant, for possession through pre- emption of suit-land. The suit was resisted on all grounds legal as well as factual. Relevant issues were framed and partial evidence of the plaintiff was recorded. At this stage, an application was moved on behalf of the defendant under Order VII, rule 11, C.P.C. For rejection of plaint on the ground that whole of the land sold was not subject to pre-emption and therefore, the suit was not maintainable in law. The application was accepted by learned Senior Civil Judge, Tank by his order dated 17-1-2001 and plaint was rejected.
4. An appeal was preferred thereagainst before learned District Judge, Tank, who accepted the same vide order, dated 13-7-2002, set aside the impugned judgment and decree of the trial Court, dated 17-1-2001 and remanded the case with direction to frame additional issue regarding partial pre-emption and then decide the case on merits in accordance with law after providing an opportunity to the parties to adduce evidence.
5. Feeling aggrieved, Sarwar Khan petitioner has filed instant civil revision under section 115 of the Code of Civil Procedure (Act V of 1908).
6. Mr. Rustam Khan Kundi, Advocate for the petitioner contended that suit of the pre-emptor suffered from the defect of partial pre-emption and plaint was validly and properly rejected under Order VII, rule 11, C.P.C. Because from the contents of the plaint, no locus standi or cause of action could be reflected in favour of the plaintiff and learned District Judge had no justification to reverse the decision of the learned trial Judge and pass an order of remand. The learned counsel added that the remand order virtually amounts to affording an opportunity to the respondent to fill in the lacuna and to do away with the weakness existing in his case which is not permissible under the law. Reliance in this regard was placed in Haji Fateh Muhammad and another v. Sheikh Ghulam Sarwar and another PLD 1961 BJ 62, Muhammad Hayat and others v. Rasool Bakhsh and others 2001 M LD 1648 and Mst. Bashiran and others v. Abdul Ghani and others 1995 SCM R 1833.
7. Mr. Gauhar Zaman Khan Kundi, Advocate for the respondent, on the contrary, supported the impugned judgment . And decree maintaining that the learned trial Judge was not competent to reject the plaint without adverting to the mandate given to him under Order VII, rule 11, C.P.C.
Inasmuch as the ingredients mentioned therein were not attracted to the case in hand. The trial Court while rejecting the plaint had travelled beyond the scope of Order VII, rule 11, C.P.C. The omission on the part of the respondent to mention Khata No,589 in notice "Talb-i-Ishhad" was accidental and had no effect on the preemptive rights of the respondent. He relied on Egypt Air v.
Sarfraz Ahmad Tarar 2003 CLC 1425 (Lahore) and Miskeen v. Additional District Judge, Mansehra and 32 others 2003 SCM R 121.
8. Suit of pre-emptor would be partial if pre-emptor does not include the whole property mentioned in the sale mutation in the plaint. In the instant case, plaintiff has pre-empted the entire land mentioned in suit mutation. No doubt it is true that in notice "Talb-i-Ishhad" only one of the Khata in suit i.e, 583 has been mentioned and the other Khata i.e, 589 does not find place but it is a matter which can only be determined through evidence as rightly held by the learned Appellate Court.
9. It is well-settled that plaint can be rejected only if it did not disclose cause of action or the same is barred by any law. Order VII, rule 11, C.P.C. Is reproduced below:-- "Rejection of plaint.--- The plaint shall be rejected in the following cases:---
(a) Where it does not disclose a cause of action.
(b) Where the relief claimed is under-valued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so,
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so,
(d) Where the suit appears from the statement in the plaint to be barred by any law."
' So it is clear that in order to invoke the applicability of clause (a) the Court shall look into the contents of the plaint only and shall examine the plaint on its face value. If the plaint by itself indicates any infirmity enumerated in clauses (a) to (b) of rule 11 of Order VII, C.P.C. Then the Court shall order the rejection of the plaint as the fruitless litigation requires to be buried at its inception to avoid the wastage of time of Courts and unnecessary harassment of the opposite party.
Reliance can be placed on the case of Haji Allah Bakhsh v. Abdul Rehman and others 1995 SCM R 459.
10. Pursuant to above discussion, finding no substance in this revision, I dismiss the same with no order as to costs.