MUHAMMAD GHAZANF AR KHAN, J.-Through instant revision petition under section 115 CPC, Muhammad Hammad Ahmad, petitioner herein, has impugned the consolidated order dated 13.10.2017 of Civil Judge-I, Takht Bhai whereby application under Order-VII Rule 11 CPC for rejection of plaint and another application under Order- VI Rule-17 CPC for amendment of written statement were dismissed.
2. Brief facts of the case are that the respondent/ plaintiff instituted a suit for pre-emption against the petitioner/defendant. The petitioner/defendant filed an application for rejection of plaint under Order-VII Rule- 11 CPC and another application under Order-VI Rule 17 CPC for amendment of the written statement. Both these applications were dismissed by the learned trial Court vide impugned single order dated 13.10.2017.
Feeling aggrieved, the petitioner has challenged the same through the instant revision petition.
3. The petitioner mainly stressed that under section 5 of Khyber Pakhtunkhwa Pre-emption Act, it is enacted that:
(1) The right of preemption shall arise in case of sale.
He argued that in the present case, there is no sale and only an agreement to sell has been pre-empted, which, he maintained, cannot be pre-empted. So, the judgments/orders of both the Courts below are against the law and were liable to be rejected under Order VII Rule-11 CPC. His second contention was that both the Courts below have illegally turned down the request of the petitioner for amendment of his written statement as the same under law can be allowed at any time.
4. I have heard arguments of the learned counsel for the petitioner and perused the file carefully .
5. In the instant case, intended amendment shall change the entire complexion of the written statement. In fact, the words used in the earlier written statement are deemed to be an admission on the part of the petitioner and change whereof shall not only change the entire defence but shall also amount to withdraw the admission which is not allowed under the law.
6. It is evident from the record that the petitioner by design moved application for amendment, to bring his case in consonance with provision of Pre-emption Act and subsequently moved an application for rejection of plaint under Order VII Rule-11 CPC, on the ground that agreement to sell is not a preemptible transaction, as held above that under subsection (2) of section 5 of Khyber Pakhtunkhwa Pre-emption Act, it is for the Court to determine the fate of document/transaction which is subject matter of the suit/preemption, so, this application even otherwise is/was not maintainable.
7. Second question to be determined by this Court is that whether application of the petitioner for amendment of written statement was rightly turned down by the Courts below or dismissal thereof is against the dictates of law. It is a fact that in earlier written statement, the present petitioner himself has made admission regarding transaction in question, however, the fate of transaction would be determined by the Court after recording pro and contra evidence. So, in the eventuality of holding by the Court that the impugned deed was in fact a sale deed, then definitely the case of preemption would be decided on its own merits keeping in view the evidence produced by the parties and if the Court reaches the conclusion that the preempted transaction is not a sale, then obviously the suit of the respondent shall be dismissed in accord with the dictates of the law.
8. Sequel to above discussion, the learned Courts below were well within their domain to pass the impugned order, no illegality, material irregularity or any jurisdictional defect was pointed out by the counsel for the petitioner in the impugned order/judgment, hence, the revision petition is dismissed in limine.