' MIAN SAQIB NISAR, J.-- The appellant brought a suit for specific performance against the respondents and in para.2 of the plaint, though only defendant has been written but from the perusal of the whole document it seems to be the result of typographical error, whereas the intention of the plaintiff/appellant was the "defendants". In forming the above view we are fortified by the contents of para. No,3 in which the plaintiff seems to convey that the earnest money on behalf of defendant No,3 was received by other defendants. Be that as it may, defendants Nos.1 and 2 admitted the agreement to sell on their behalf in the written statement but took up the defence that it is the plaintiff/appellant who failed to perform his part of the agreement and, thus, is not entitled to enforce the agreement. As regards defendant No,3, he filed an independent written statement in which in categorical term denied of having ever entered into any agreement with the appellant. Besides the written statement, the said defendant also moved an application under Order VII, rule 11, C.P.C. For rejection of the plaint to his extent. The learned Court below through the impugned order dated 21-2-2006 has rejected the plaint qua defendant No,3.
2. Learned counsel for the appellant contends that partial rejection of the plaint is not permissible under the law; only contents of the plaint are to be seen at the time of the rejection of the plaint on the ground that it does not disclose a cause of action and no data or material provided by the defendants should be looked into; while rejecting the plaint for the non-disclosure of the cause of action, the facts stated in the plaint should be taken as correct, therefore, the fact mentioned in the plaint that the defendants including defendant No,3 had entered into the agreement to sell with the appellant should have been taken as correct and the plaint in the circumstances could not be rejected.
3. On the other hand, learned counsel for the respondents has drawn our attention to the agreement to sell which does not bear the signatures/thumb-impression of defendant No,3 though his name is written at the top as one of the sellers. It is also submitted that defendant No,3 has never appointed any of the other defendants to act as an attorney on his behalf to enter into the agreement to sell or to receive any earnest money. Resultantly, the plaint did not disclose any cause of action as against respondent No,3 and has been rightly rejected by the Court below.
4. We have heard learned counsel for the parties and find that question whether defendant No,3 had also entered into an agreement to sell and other defendants were acting on his behalf and received the earnest money is a matter of factual enquiry which should be decided on the basis of the evidence enabling the plaintiff to prove the contents of his plaint that defendant No,3 had also entered into the agreement as alleged and the Court should not have summarily rejected the plaint by applying Order VII, rule 11, C.P.C. For the reason that signature etc. Of defendant No,3 are not available on the agreement to sell and in this manner disbelieving the contents of the plaint which otherwise should have been deemed correct, while considering to reject the plaint on account of non-disclosure of cause of action. Therefore, this appeal is allowed, the impugned order dated 21-2-2006 is set aside and the matter is sent back to the learned trial Court with a direction to decide the case within nine months from today.