' SYED ASGHAR HAIDER, J.---The appellants filed a suit for specific performance of the disputed property, the respondents contested the suit by filing written statement, along with the written statement an application under Order VII, rule 11 C.P.C. Was filed pleading that the cause in the suit was raised earlier in a suit for permanent injunction titled "Muhammad Viryam etc v. Ahmed etc", therefore, bar of Order II, rule 2, C.P.C. Is applicable and hence the application be allowed and the plaint be rejected. The trial Court after hearing the arguments of learned counsel for the parties proceeded to accept the application and rejected the plaint under order VII rule 11 C.P.C. Aggrieved thereof the appellants filed an appeal, it too was dismissed. Hence this second appeal.
2. The learned counsel for the appellants contended that the disputed property is owned by the Provincial Government and was allotted to the respondents No,2 to 9 under the ejected tenants scheme. The respondents No,2 to 9 agreed to sell the same to the appellants to their extent and executed an agreement in this context on 17-3-1999 for a consideration of Rs,5,00,000 (rupees five hundred thousand only). The respondent No,3 sold his share to the appellants independently in consideration of Rs,1,00,000 (rupees one hundred thousand only), possession of the property was also handed over to the appellants. It was further argued that as formal transfer was required to be performed by the Provincial Government, therefore, till the needful was not done, under.The provisions of section 19 of the Colonization of the Government Lands Act, the property could not be transferred, hence formal execution of the agreement was deferred. Efforts by the plaintiffs to get a formal transfer effected failed as they refused to do the needful. Therefore, the appellants were constrained to file a suit for permanent injunction. This suit could not succeed as the plaintiffs/appellants could not produce evidence and was, therefore, dismissed. Later the appellants filed the instant suit for specific performance. The respondent filed an application under Order VII, rule 11, C.P.C. Raising the bar of Order II, rule 2, C.P.C., which was not applicable as the former suit was independent and in fact the only remedy in law available to the appellants was to file a suit for specific performance. The trial Court misconstrued the legal proposition and rejected the plaint. To fortify his contentions the learned counsel relied on the following precedents:-- ' Mst. Nazima Begum and another v. Mst. Hasina Begum and others 1991 SCM R 177, Ejaz Hussain v.
Abbas Ali 1993 CLC 2478, Muhammad Ashraf v. Muhammad Latif 2005 YLR 756, Mst. Nazeeran Begum and others v. Hosina Begum and others 1989 MLD 1877, Khalique Ahmad v. Tahir Saeed and another 1998 CLC 1973, Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344, Sher Muhammad Khan and others v. Ilam Din and others 1994 SCM R 470, Muhammad Sadiq v.
Muhammad Ramzan and others 2002 SCM R 1821, Abdul Ghani v. Mst. Fatima Bibi and 5 others 1994 SCM R 1786 and Muhammad Aslam and 4 others v Ghualm Rasool and 6 others 2002 M LD 1860.
3. The learned counsel for the respondents contended that the provisions of second appeal as contained in section 100 of the, C.P.C. Are limited and restricted only to a question of law, which was not agitated, there are concurrent findings in favour of the respondent by the trial Court as well as the lower appellate Court and, therefore, the present appeal is not maintainable. Lastly the rigours of Order II Rule 2, C.P.C. Are fully applicable to the present matter and, therefore, the present appeal be dismissed. He relied on Jamia Masjid Rehmania v. Muhammad Shaheen and others 2003 M LD 2001 and M. Hannan and 2 others v. Dr. Anwarul Hassan and another 2002 YLR 1969. I have heard the learned counsel for the parties and perused the impugned judgment, as well as the judgment and decree of the trial Court.
4. It is settled proposition of law that for the purpose of rejection of plaint, under Order VII, rule 11, C.P.C. Only the contents of the plaint can be looked into, no other material in the context can be examined. The bar of Order II Rule 2, C.P.C. Is applicable only when a cause has been agitated and decided on merits and the parties have raised the dispute in question before the competent forum.
In the instant matter the appellants filed earlier, a suit for permanent injunction on the apprehension that the respondents, were not proceeding under the provisions of section 19 of the Colonization of the Government Lands Act and they anticipated dispossession, therefore, they filed the said suit for permanent injunction. As far as the question of enforceability of the agreement was concerned, it never was an issue before the trial Court. The reasoning put forthwith by the trial Court that the plaintiff was required to include the whole claim in the suit is misconceived, the plaintiff could not seek the enforceability of the contract earlier to the period when the defendants/ respondents were not authorized by the competent authorities to transfer the disputed land. The only cause of action to the appellants at that time was an imminent threat of dispossession from the concerned quarters and respondents, therefore, the only relief against dispossession was prayed for. The bar of Order II rule 2, C.P.C. And the provisions as contained therein are completely different and are not applicable to the cause of the appellant the Plaintiffs/appellants did not abandon their cause, as the cause for enforceability of the agreement by way of specific performance of the agreement is totally different and has no nexus with the dispute raised earlier.
Both suits emanated of different causes and have nothing in common, the relief of specific performance is independent of the earlier relief sought. The controversy in question has been dealt with at length in the precedent report as Mst. Nazima Begum and another v. Mst. Hasina Begum and others 1991 SCM R 177 and both causes have been distinguished. Thus the appellants have successfully proved that the impugned judgments and decrees are not in consonance with the law on the subject. This Court has ample powers under section 100, C.P.C. To interfere in the said matter, as the decision made by the Courts below is contrary to law and is a result of substantial error and deviation in the procedure. The precedents referred to by the learned counsel for the respondents are inapplicable to the facts of the present matter as Jamia Masjid Rehmania v. Muhammad Shaheen and others 2003 M LD 2001 relates to a suit for possession and not specific performance likewise M. Hannan and 2 others v. Dr. Anwarul Hassan and others 2002 YLR 1969 relates to a void contract. Therefore, this appeal is allowed, the impugned judgments and decrees are set aside the proceedings shall deem to be pending in the trial Court for adjudication, on merits in accordance with law.