' With the consent of the learned counsel for the parties this case is being heard and disposed of as a notice case.
2. Respondent No.1 filed a suit for specific performance of agreement to sell dated 23-9-2002.
Recovery of possession as a consequential relief and recovery of damages for a sum of Rs.5,00,000 was also sought for against the defendant. The petitioner/defendant entered appearance, filed an application under Order VII, rule 11, C.P.C. For rejection of the plaint. It was contested. The learned trial Court dismissed the application. The petitioner preferred revision petition which came up for hearing before the learned Additional District Judge, Lahore, who by his order dated 17-9-2004 dismissed the revision petition. This Constitutional petition assails both the order passed by the learned Courts below.
3. The learned counsel for the petitioner contends that findings of both the learned Courts below are (sic). He further argued that plaint did not disclose any cause of action and required its rejection at the very outset.
4. On the other hand, the learned counsel for the respondent submitted that the petitioner has failed to file the written statement inspite of obtaining opportunity for the purpose and to prolong the litigation came up with application under Order VII, rule 11, C.P.C.
5. Heard. Record perused.
6. The petitioner along with one Izat Kamal purchased that suit properly from Abdul Razzaq through an agreement to sell dated 6-9-2000. On the basis of the said agreement, he transferred his own share in favour of Misbah-ul-Hassan, respondent and received a sum of Rs.2,00,000 through cheque dated 23-9-2002. He undertook to get the sale-deed executed in favour of the respondent.
It was also stipulated in the agreement that the petitioner has authority to alienate the suit plot and there is no obstacle in his way in transferring of the suit property.
7. Abdul Razzaq did not raise any objection for rejection of the plaint. He was not impleaded party in revision petition before the learned Additional District Judge, though he was arrayed as defendant No.2 in the plaint. The petitioner admits that execution of agreement in favour of the plaintiff-respondents. He is estopped by his words and conduct to plead against the contents of agreement.
8. The plaint is for specific performance of the agreement and as consequential relief, a decree for damages has also been claimed. Para. 3 of the plaint indicates that the petitioner-defendant No.1 handed over the copies of the documents listed in paragraph 3 to the plaintiff. The narration mentioned in the plaint has to be accepted unless the same is rebutted by admitted documents.
The petitioner as well as defendant No.2 has not filed their written statement. The petitioner should file his written statement and may pray the. Learned trial Court to frame preliminary issue to resolve the controversy raised in the petition. The conclusion drawn by the learned Courts below is in accordance with law declared by the Honourable Supreme Court of Pakistan in Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCM R 826) wherein it was held that the Court while taking action for rejection of plaint under Order VII, rule 11, C.P.C., cannot taken into consideration pleas raised by the defendant in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record.
9. In view of what has been said above, this writ petition is without force and is dismissed.