Miftah-ud-Din Khan, J.--Muhammad Sadiq petitioner has filed the present writ petition against the judgment and order dated 07.10.2010 of learned Additional District Judge-III, Abbottabad, whereby, revision petition of respondent was accepted and order dated 08.06.2010 of learned Civil Judge-IV, Abbottabad was set aside and plaint of the petitioner in pre-emption suit was rejected under Order-VII Rule 11 C.P.C.
2. The brief facts of the case are that petitioner instituted a suit for possession through pre-emption in respect of property, fully described in the heading of plaint, situated in Mauza. Banda Khair Ali Khan, Tehsil & District Abbottabad. The suit of the petitioner was contested by the respondents by submitting written statement alongwith application under Order-WI, Rule 11 CPC for rejection of plaint. Petitioner contested the application under. Order-WI, Rule 11 C.P.0 by filing written reply and also submitted application under Order-I Rule 10 C.P.0 for impleadment of sons of respondent as defendant in the suit in whose favour the property in question was transferred by respondent through Gift-Deed No. 1172. Learned Civil Judge-IV, Abbottabad after hearing the parties rejected application of respondent under Order-WI, Rule 11 C.P.0 and allowed petitioner to amend his plaint thereby arraying sons of respondents as defendant in the suit vide order dated 08.06.2010.
Aggrieved from the same, the respondent preferred Civil Revision No. 22/CR of 2010 before learned Additional District Judge-Ill, Abbottabad, which was accepted and while allowing application of respondent under Order-VII, Rule 11 C.P.0 rejected the plaint of the petitioner. Aggrieved from the same, petitioner has lodged the present writ petition.
3. Mr. Muhammad Saleem Awan, Advocate, learned counsel for petitioner contended that the plaint of the petitioner clearly discloses a cause of action and from averments in the plaint the suit of the petitioner was not barred by any law and that after performance of Talbi-Muwathibat and Talb-i-Ishhad against the original transaction by the petitioner and institution of pre-emption suit against the original transaction, the learned trial Court was quite justified to order the impleadment of subsequent transferees and reject the application of respondent for rejection of plaint, but the learned revisional Court has wrongly and illegally reversed the findings of learned trial Court and ordered the rejection of plaint of petitioner without any legal justification. He further contended that the learned revisional Court has wrongly applied the case law reported in 2004 SCMR 1270, which has been subsequently reviewed in PLD 2010 SC 803.
4. The learned counsel for respondent defended the judgment of revisional Court and contended that the plaint of the petitioner was barred by law, therefore, the learned revisional Court was quite justified to reject the plaint of the petitioner under Order-WI, Rule 11 C.P.C. He placed reliance on PLD 2011 Peshawar 98.
5. The contention of learned counsel for petitioners has got force because the petitioner after performance of required Talbs against original transaction of sale filed the pre-emption suit against the said transaction, therefore, the plaint of the petitioner clearly discloses a cause of action against the original transaction. The subsequent transfer by the vendee to his minor sons through gift would not justify rejection of plaint as for the purpose of rejection of plaint, the averments in the plaint has to be taken into account. The learned revisional Court has travelled beyond the limited scope of invoking the provisions of Order-WI, Rule 11 C.P.0 by giving findings on legal and factual controversy regarding which after impleadment of subsequent transferees as necessary party inviting written statement, framing issues and recording pro and contra evidence, findings had to be given. The learned revisional Court has wrongly relied upon 2004 SCMR 1270 because the same judgment has been reviewed in PLD 2010 SC 803. The Honourable Supreme Court of Pakistan with respect to impleadment of subsequent vendee in pre-emption suit has excluded the application of principle of lis pendens to such cases ruled as under: "S. 31--Supreme Court Rules, 1980 O.XXVI, R.I--Constitution of Pakistan (1973), Art. 188--Transfer of Property act (IV of 1882), S. 52--Review of Supreme Court judgment--Right of preemption-- Subsequent vendee--limitation--Lis pendens, principle of--Applicability--During pendency of suit filed by pre-emptor vendee sold land in question and pre-emptor impleaded subsequent vendee as defendant--High Court in exercise of revisional jurisdiction set aside the order passed by trial Court on the ground that subsequent vendee could only be impleaded within the period of limitation provided under S. 31 of North-West Frontier Province Pre-emotion Act, 1987--Validity- Principle of lis pendens was not applicable to cases, where a suit for pre-emption had already commenced within the period of prescribed time--Right of subsequent vendee was also governed on the basis of suit, which had already commenced in respect of same property because right of pre-emption had been claimed in respect of the property and not in respect of the person who became first or second vendee--Judgment under review was required to be revisited and judgment passed by High Court was set aside and matter was remanded to High Court for decision afresh."
The suit of petitioner pre-emptor was against the original transaction of sale regarding which pre- emption suit was filed within the prescribed period of limitation and the plaint of petitioner clearly discloses a cause of action against the original transaction of sale and was not apparently barred by any statutory provision, but the learned revisional Court totally ignored the averments in the plaint and traveled beyond the limited scope of Order-VII, Rule 11 C.P.0 and rejected the plaint on legal and factual points which are yet to be raised by subsequent transferees after impleadment.
Right of subsequent vendee was also governed on the basis of suit, which had already commenced in respect of the suit property, because right of pre-emption had been claimed in respect of the property and not in respect of the person who become first or second vendee. Thus, we hold that the impugned order of learned revisional Court regarding rejection of plaint of petitioner is wrong, illegal and without lawful authority. We, therefore, allow the present writ petition, set aside the order of learned revisional Court and restore that of learned trial Court.