' SH. ABDUL RASHID, J.---This appeal assails the order dated 21-5-2005 whereby a learned Civil Judge, Ferozwala, has directed maintaining of status quo regarding the suit property.
2. The facts necessary for the disposal of this first appeal are that Rana Muhammad Yaqoob Khan, respondent No,1, had filed on 21-5-2005 a suit for enforcement of an agreement to sell dated 14-5- 2002. According to the averments in the plaint, Muhammad Amin, appellant No,13 had executed a sale agreement on his own behalf and as attorney of other appellants regarding land measuring 20/25 squares located in Mauza Galo and Mauza Dhingan, Tehsil Ferozewala, District Sheikhupura.
The sale price agreed was at the rate of Rs,36,000 per Acre. As per alleged agreement the proposed vendees were Rana Muhammad Yaqoob, Rehmat Ali, Muhammad Arshad and Muhammad Ashiq, respondents Nos.1 to 4 herein. Muhammad Arshad and Muhammad Ashiq were to get 1/3rd share each whereas Rana Muhammad Yaqoob and Rehmat Ali were to get 1/6th share each. Needless to mention that Rana Muhammad Yaqoob alone has filed the instant suit. It is pleaded that an amount of Rs,25 lacs had been paid as earnest money; that land measuring 372 Kanals, 4 Marlas in Mauza Dhingan had been transferred in favour of respondents Nos.1 to 4 vide Mutation No,517 attested on 31-8-2002; that land measuring 201 Kanals, 14 Marlas from the same Mauza was also sold and Mutation No,520 was sanctioned on 13-9-2002 in favour of respondents Nos.1 to 4 and that land measuring 319 Kanals, 1 Marla located in Mauza Galo was also sold to them and Mutation No,503 was attested in favour of respondents Nos.1 to 4. It was further pleaded that despite demands, the appellants had not transferred the remaining land measuring 3058 Kanals, hence the necessity of the suit. Along with the plaint, plaintiff-respondent No,1 filed an application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. For grant of temporary injunction regarding the suit-land. On the very first day of hearing when the suit came up for bearing, a learned Civil Judge Ist Class, Ferozewala; passed the following order:-- "ORDER: 21-5-2005 ' Present: Counsel for the plaintiff/ petitioner.
' It is fresh suit, be registered.
' Defendants/respondents be summoned for 2-6-2005 through registered post as well. Process fee be deposited today. Plaintiff is directed to deposit court-fee of Rs,15,000 till next date of hearing.
' Along with the suit an application under Order XXXIX, rules 1, 2, C.P.C. Has been filed which is supported by an affidavit. Copies of registered Haqdaran Zamin are on the file.
' Preliminary arguments heard, record perused.
' Prima facie plaintiff/petitioner has got good arguable case in his favour. It is ordered that status quo be maintained till next date of hearing. Announced (Sd.)
21-5-2005 Civil Judge Ist Class Ferozewala."
' The afore-quoted order has been challenged through this appeal.
3. I have heard the learned counsel for the parties and have perused the record. Learned counsel for the appellant has taken me through the alleged agreement to sell and has submitted that the suit based on such an agreement wherein the property subject-matter thereof had not been clearly identified was not entertainable and its plaint is liable to rejection under Order VII, rule 11, C.P.C. On the other hand, learned counsel for the respondent has argued that the instant appeal being against an interlocutory order, granting temporary injunction the plaint cannot be rejected muchless suo motu by this Court in the absence of any application to that effect by the defendants-appellants. The objection raised by the learned counsel for the respondents is fallacious. In Messrs Paper Corner v. Board of Intermediate and Secondary Education (1981 CLC 740) the contention raised on behalf of the appellants that "in an appeal addressed against an interlocutory order, lower appellate Court was not authorized to reject plaint" was repelled by observing as follows:-- "In terms of section 107(2), C.P.C. Powers of the appellate Court are co-extensive with that of the trial Court. Subject to presence of specified conditions, the plaint can be rejected even by the appellate Court and there is no express bar for restricting its powers in that behalf except that the plaint in the suit must be on its own file."
' In the precedent case rejection of the plaint by the first appellate Court inter alia on the ground that the suit was barred by limitation was upheld. In Messrs Abdul Hamid v. Board of Intermediate and Secondary Education (1991 M LD 672) similar view were expressed. Again in Muhammad Yousaf v. Additional District Judge, Attock (1992 M LD 856) the law was interpreted in the following terms:-- "It is common ground that appeal is a continuation of the suit. Subsection (2) of section 107 provides that the Appellate Court has the same powers and duties as are conferred and imposed by the Code of Civil Procedure on Court of original jurisdiction and it can do, while the appeal is pending before it, what the original Court could have done in respect of suit instituted before it.
Therefore, unless there was some prohibitions restrictive of the powers of the Appellate Court in this behalf, it has ordinarily and as a general rule the same powers to exercise and functions to perform, which were open to the original Court from whose decision the appeal was brought before it."
' The decision reported as Niamat Ali v. Mst. Sardaran Bibi (2003 YLR 51) is on all fours. In that case the revision petitioners filed a suit for declaration in respect of agricultural land. The application filed along with the suit for temporary injunction was dismissed by the learned trial Judge. The plaintiff filed an appeal which was dismissed by the learned District Judge. At the same time, the learned Appellate Court also rejected the plaint under Order VII, rule 11, C.P.C. Holding that the suit was barred by law. The plaintiffs filed a revision petition which was dismissed by this Court by inter alia observing as follows:-- "The second contention of the petitioners that the learned Appellate Court cannot reject the plaint is groundless and it is not convincing. The learned Appellate Court while deciding the appeal exercises all the powers of the trial Court and can decide and reject the plaint under Order VII, rule 11, C.P.C."
' In the aforementioned precedent case also, there was no application nor any prayer by the defendants for rejection of the plaint. The learned District Judge while seized of the appeal filed by the plaintiffs against the order of refusal to grant temporary injunction suo motu rejected the plaint under Order VII, rule 11, C.P.C. Again in Abdul Ghaffar Mehenti v. Kathiawar Co-operative Housing Society Limited (2003 YLR 2635) it was held as follows:-- "There is no dispute about the legal proposition that the Court is not only empowered but under obligation to reject the plaint even without any application from a party, if the same is hit by any of the clauses mentioned under rule 11 of Order VII, C.P.C."
' Therefore, the contention of the learned counsel for the respondents that this Court in the exercise of its appellate jurisdiction being seized of an appeal filed against the order granting temporary injunction, cannot reject the plaint, is destitute of any valid foundation and is repelled accordingly.
4. Admittedly, Rana Muhammad Yaqoob Khan plaintiff-respondent No,1 is beneficiary to the extent of 1/6th share of the land subject-matter of the alleged agreement to sell, respondents Nos.2 to 4 who were to get 5/6th share of the land have not joined him in the suit. It was mentioned in the plaint that they had filed a separate suit, but it was stated at the bar that they had withdrawn their suit. Be that as it may, a perusal of the alleged agreement to sell shows that no particulars of the land agreed to be sold were mentioned therein. All that was stated was that the alleged vendor were owners of land in Mauza Galo and Dhingan measuring 20/25 squares. Thus, the agreement to sell B suffered from inexactitude about its subject-matter. Since the land had not been specified in the agreement to sell the suit suffered from a major defect and the plaint was liable to rejection . In Fida Hussain v. Jalal Khan (2002 CLC 1339) where the agreement to sell was found to be deficient in clearly identifying the land subject matter thereof and the suit for specific performance was dismissed by the first appellate Court, this Court upheld the decision by inter alia holding as follows:-- "The particulars of the land are not given in the agreement to sell. It is only mentioned that the respondent would transfer one Acre of land towards east of Chah Mithu Wala. As regards the total area of the land is concerned, it is given as one Acre and there is no certainly about the area as the other particulars to identify one Acre of land are missing in the agreement to sell".
"In the absence of any Khasra or Killa number it was not possible to ascertain the land which was subject-matter of the sale. Keeping in view this infirmity in the agreement to sale the first appellate Court has correctly relied on the provision of section 21 (c) of the Specific Relief Act and rightly held that the particulars of, the land could not be found with reasonable certainly. It is difficult to lay down any general rule as to what is sufficient certainly in a contract but it can, be safely stated that the certainly required must be reasonable one being regard to subject-matter of the contract. The principle is that description must be such as to enable the Court to determine with certainly the subject-matter of the contract. In the instant case in the absence of any particular of Killa number or any other defineable particulars, it was not possible for the Court to determine that which 8 Kanals of land out of 86 Kanals, 8 Marlas was subject-matter of the agreement to sell. I, therefore, uphold the finding of the first appellate Court on this score."
' I am therefore, of the view that the plaint is liable to rejection on this ground C alone.
5. There is yet another important aspect of the matter. Plaintiff's own case is that the agreement to sell enured for his benefit to the extent of 1/6th share only. As per plaint, the appellants were owners of total land measuring 3971 Kanals, 15 Marlas in both the villages. It is also his case that land measuring 892 Kanals, 19 Marlas had been sold in favour of respondents Nos.1 to 4. Thus, there remained a little more than 3000 Kanals of land. The plaintiff has himself mentioned in the plaint that the bargain was struck at the rate of Rs,36,000 per Acre. Even at that rate, the price of the remaining land comes to approximately Rs,1.30 crores.
' Moreover, as mentioned above, although plaintiff-respondent No,1 as per his own case, could claim 1/6th of the land, yet according to the prayer clause, he has sought decree for the entire remaining land measuring 3058 Kanals, 16 Marlas as against payment of only Rs,5,12,000. This is simply ridiculous. The learned trial Judge while entertaining the suit has not adverted to this important aspect of the matter. The suit as constituted was thus not entertain-able. In Mst.
Hameeda Shamim v. Deputy Commissioner, Karachi South (2003 CLC 53) it was observed that the provisions of Order VII, rule 11, C.P.C. Enjoin upon the Court to bury the stillborn child at its earliest stage.
6. Besides, the agreement to sell was executed on 14-5-2002 whereas the suit was tiled after more than 3 years on 21-5-2005. The delay in filing the suit has remained unexplained.
7. For the foregoing reasons, I am clearly of the view that this appeal must succeed and not only that the impugned order dated 21-5-2005 passed by the learned Civil Judge cannot be maintained but the plaint of the suit is liable to be rejected under Order VII, rule 11, C.P.C. And I hereby order accordingly. There shall, however, be no order as to costs.