1. WAQAR AHMAD SETH, J.--- This judgment shall also dispose of W.P.No.3117 of 2010 titled Mst.
2. Sumera Gul v. Muhammad Ilyas and others and W.P. No.3078 of 2010 titled Mst: Sumera Gul v. Amir Nawaz and others as similar question of law and facts are involved.
3. 2.Precise background of the writ petition is that petitioner filed a suit for possession by exercising her right of pre-emption against the sale Mutation No.1590 attested on 10-8-2009, on the basis of decree of court. Respondent No.1 contested the suit by filing written statement and the learned trial court from the divergent pleadings of the parties framed 11 issues. After framing of issues respondent No.1 filed an application for dismissal of the suit under Order VII, Rule 11, C.P.C., by specifically mentioning therein that the suit of the petitioner/plaintiff is hopelessly barred by time.
4. The said application was contested and the learned trial court dismissed the application of respondent No.1 vide order dated 13-4-2010 for recording pro and contra evidence as the question of limitation was a mixed question of law and facts.
5. 3.Aggrieved of the trial court decision dated 13-4-2010 respondent No.1 preferred a revision petition before respondent No.3 and the learned revisional court accepted the revision by setting aside the order dated 13-4-2010 of Senior Civil Judge, Charsadda being against spirit and mandate of the provision contained in Order VII, Rule 11, C.P.C. Resultantly, respondent No.1's application for rejection of plaint succeeded and plaint of petitioner/plaintiff stand rejected, hence this writ petition.
6. 4.Learned counsel for the petitioner contended that the judgment and order of the trial court i.e. respondent No.2 was well-reasoned and quite in accordance with the relevant law. The learned revisional court was having no jurisdiction to set aside the well-reasoned order of trial court; that respondent No.1 in his application only agitated the ground of bar of limitation and it was not the case of respondent No.1 that the sale transaction is not pre-emptable. The learned revisional court on its own stretched the case by holding that suit for pre-emption is not maintainable against mutation which is attested on the basis of order of a court, hence has committed the error of misinterpretation of section 2(d) of the N.-W.F.P. (KPK) Pre-emption Act, 1987, which order is not only illegal but the course adopted by the revisional court is unwarranted under the law, while referring to section 2 of Pre-emption Act, 1987. It is contended that only sale in execution of decree for money is excluded from the definition of sale and all other sale made through any other decree are pre-emptable.
7. 5.As against this, learned counsel for the respondent No.1 while supporting the judgment of the revisional court tried to drag his case in section 2(d)(ii) "of any order of a civil, criminal, revenue or any other court, for the purpose of sale by treating the ex parte decree dated 2-5-2009 as an order of the court and subsequent Mutation No.1590 dated 8-8-2009. It was also argued that the revisional court has the power to pass any order/judgment on the question of law even if it is not agitated before the trial court while relying on PLD 2011 Peshawar 1 and since, according to the learned counsel no useful purpose will be solved while remanding the case for recording of evidence, requested for dismissal of the writ petition.
8. Arguments heard and record perused.
9. 6.The Mutation No.1590 attested on 10-8-2009 shows that the same was got attested on the orders of Civil Judge in accordance with the judgment/decree dated 2-5-2009 in the shape of an ex parte decree in which proper decree-sheet was drawn. Section-2 subsection(d) defines the terms sale which reads as under:--- 2.Definitions section of N.-W.F.P. (KPK), Pre-emption Act, 1987.
10. (d)'Sale' means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of immovable property by way of hiba-bil-iwaz or hiba-bi-shart al-iwaz but does not include: (i)transfer of an immovable property through inheritance or will or gift, other than hiba-bil-iwaz or hiba-bi-shart al-iwaz: (ii)a sale in execution of a decree for money or of any order of a civil, criminal, revenue or any other Court or a Revenue Officer or any local authority; (iii)
11. (iv)
12. (v)
13. The underlined portion of the above referred section is done by me as the emphasis is over here.
14. 7.According to Civil Procedure Code, 1908 the word `decree' is defined in section 2 subsection (2) whereas, word `Order' has been defined in section 2 subsection (14) which reads as under:--- 2.(14) 'Order means the formal expression of any decision of a civil court which is not a decree.' ,hence while reading it with the underlined portion of section 2(d)(ii) it cannot be said that it was an order of a civil court for the purpose of bringing the case within the ambit of excluding clause.
15. 8.The mutation challenged before the trial court is undisputedly based on the decree passed by the court and that decree is not in a money suit rather it was a suit for declaration coupled with permanent injunction to the effect that defendants in that suit were the owner and possessor of the property measuring 12 kanals bearing khata and khasra Numbers mentioned in the said plaint, hence the learned revisional court wrongly interpreted section 2(d) of the Act ibid. 9.As regarding the plea of the present respondents that revisional court in its jurisdiction under section 115, C.P.C. can decide the question of law at any time, whether agitated or not before the trial court is concerned. In this respect, it is to be noted that the learned trial court has not decided the case as yet, rather has framed the issues including the issue of limitation and vide the order dated 13-4-2010 asked for recording of pro and contra evidence meaning thereby that there is no decision as yet. Moreover, the application of the respondent under Order VII, Rule 11, C.P.C. was specifically on the point of limitation and there was no question of maintainability, regarding the sale and applicability of excluding clause was agitated in the said application and not even in the written statement, hence in these circumstances, the revisional court was having no jurisdiction to go to that extent for rejecting the plaint of the petitioner/plaintiff.
16. 10.Before parting with the judgment, it is held that the Mutation No.1590 attested on 10-8-2009, on the basis of decree dated 2-5-2009 in Suit No.94/1 is not a money decree, hence does not come within the excluding clause of section 2(d)(ii) of N.-W.F.P. (KPK) Pre-Emption Act, 1987 nor the same comes within the purview of 'Order' as mentioned therein.
17. 11.In view of the above, while allowing this writ petition, we set aside the impugned order and judgment dated 9-7-2010 of learned District Judge, Charsadda and restored the order dated 13-4- 2010 of learned Senior Civil Judge, Charsadda. The suit/plaint of the petitioner be deemed to be pending before the trial court. The trial court is expected to conclude the trial, on merits issuewise, according to the National Judicial Policy. Parties are directed to appear before Senior Civil Judge, Charsadda on 10-4-2013.