SYED ARSHAD ALI, J.--- Petitioner through the instant revision petition has called in question the judgment and order of learned Additional District Judge, Ghazi Haripur dated 19.03.2015 whereby the learned Additional District Judge, dismissed Civil Appeal No, 29/13 of 2014 filed by the petitioner against the judgment and decree of learned Civil Judge, Haripur dated 06.03.2014, through which the learned trial Court had rejected the plaint of the respondent.
2. Essential facts of the case are that respondent Jamil-ur-Rehman purchased suit property through mutation No, 745 attested on 27.05.2013 from Liaqat Khan. According to the averments in the plaint, the plaintiff/petitioner came to know about the said sale through Muhammad Ajmal son of Ghulam Rabbani on 15.08.2013 at 05:00 P.M. and as such he performed the jumping demand (Talb-iMuwathibat) in presence of Mehboob son of Ghulam Ameer and Shahzada Khan son of Muhammad Safdar. He has further stated in the plaint that the notice of Talbi-Ishhad was issued through registered acknowledgement to the present respondent on 28.08.2013, whereas the suit was filed on 23.09.2009.
3. The learned trial court issued notice to the respondent/defendant who appeared and filed application for rejection of plaint under Order VII, Rule 11 of Civil Procedure Code 1908 on the grounds that he has alienated the suit property to his son through mutation No, 746 dated 27.05.2013, prior to the institution of suit.
4. In view of the aforesaid facts, the petitioner/plaintiff filed an application for impleadment of the son of respondent/ defendant being donee of the suit property. The learned trial Court while relying on the ratio of the judgment of the honourable Supreme Court of Pakistan, reported in PLD 2009 SC 93, rejected the plaint vide order dated 06.03.2014 and resultantly the application of the petitioner/ plaintiff was also dismissed. The appeal filed by the petitioner was also dismissed by the learned appellate Court vide impugned judgment/order/decree dated 19.03.2015.
5. Arguments heard and record perused.
6. The question whether the subsequent transaction was a valid devise to ward off the right of pre- emption of the petitioner/plaintiff or whether the same A was only a disguise/sham transaction in order to deprive the petitioner/plaintiff from his right of pre-emption can only be answered after recording evidence.
7. The Honourable Supreme Court of Pakistan in "Muhammad Hussain v. Muhammad" (PLD 2010 SC 803) has held that:-- "We have heard the learned counsel for the parties and have gone through the orders passed by all the Courts below. It is pertinent to mention here that in the instant case the suit was instituted within the period of prescribed limitation i,e, 120 days. Now the only question for consideration is that for the purpose of second vendee, who has purchased the property subsequently, the period for filing of suit or impleading him as party, shall run afresh or on the basis of the suit, which had already been instituted against the original vendee or he would be impleaded without taking into consideration that the sale had taken place beyond the period of limitation. On having gone through the relevant provisions of law on the subject as well as the judgments cited by the learned counsel for the petitioner. It may also be noted that an earlier judgment, in the case of Mustaqim Khan v. Abdullah Khan and others PLD 1951 Pesh. 1, while examining the same proposition, it has been held that:-- Wow, it cannot be denied that a right of pre-emption comes into existence as soon as sale is effected. The re-sale, therefore, does not create any new right; the right pre-exists the re-sale, I, therefore, conclude that the view of law taken in 26 Punjab Record 1908, 10 Indian Cases 367, and AIR 1930 Lah. 356, should be preferred to the one taken in 1942 Pesh.L.J.
43. This conclusion can be justified on other considerations also. It is admitted that if a person possessing a superior right of pre-emption to the pre-emptor instead of buying the suit property privately brings a preemption suit in respect of the same property, his suit will succeed and the pre-emptor will be non-suited.
Consequently, there is no cogent reasons why the same result should not follow in case such a person instead of bringing a pre-emption suit buys the suit property out of Court from the first vendee. It is also well-established that a vendee may sell to a person who has an equal right with the pre-emptor or who has a superior right to the pre-emptor, ante litem, so as to defeat the pre- emptor's claim provided the transaction is genuine. This being so, I think it will be inequitable to permit a pre-emptor to defeat a person who has a superior right of preemption and to whom the suit property is re-sold within a period of limitation, simply because the pre-emptor rushes to Court immediately after a sale is effected."
The above principle has been reiterated in the judgments cited by the learned counsel for the petitioner. As far as the judgment relied upon by the learned counsel for the respondent is concerned, no law has been declared in the same as in that very case, leave to appeal was declined. It is also important to note that principle of lis pendens is not applicable to the cases, where a suit for pre-emption is already commenced within the prescribed time. Therefore, as far as the second vendee, who had purchased the property from the first vendee is concerned, his right would also be governed on the basis of the suit, which has already commenced in respect of the same property because the right of pre-emption has been claimed in respect of the property and not in respect of the person who had become first or second vendee.
Thus, for the foregoing reasons, we are of the opinion that the judgment under review is required to be revisited; as result whereof the petition is accepted and the appeal filed by the Petitioner is allowed. Consequently, the judgment of the High Court dated 18th December, 1994 is set aside and the case is sent back to the learned High Court, where now the matter is pending, for consideration to implead Fazal-e-Akbar as respondent and then to dispose of the matter pending before it. No order as to costs."
(Underline is for emphasis)
Both the Courts below have fallen in the field of error by rejecting that plaint while ignoring the settled principle of law that for the purpose of deciding the application for rejecting the plaint, only the contents of the plaint have to be taken in consideration. In "Muhammad Zaman and others v.
Shah Wazir Khan, PLD 2002 Peshawar 45", it was held:-- "In order to invoke the applicability of this clause the Court shall look into the contents of the plaint only and shall examine the plaint on its face value. If the plaint by itself Indicates any infirmity enumerated in clauses (a) to (d) of Rule 11 of Order VII, C.P.C. then the Court shall order the rejection of the plaint as the fruitless litigation requires to be buried at its inception to avoid the wastage of time of Courts and unnecessary harassment of the opposite- party.
It is also to be noted that for the purpose of determining whether the plaint discloses cause of action or not, the Court has to presume that every allegation trade in the plaint was true. It thus follows that resort to the power of rejecting a plaint be trade only if the Court comes to the irresistible conclusion, within the parameters of Order VII, Rule 11, C.P.C., that even if all allegations made in the plaint were proved, plaintiff would not be entitled to any relief whatsoever. If the Goverments contained in a written statement, being rival pleadings, engenders any controversy then it becomes an issue between the parties which can only be resolved after recording and evaluating the evidence of the combating parties adduced at the trial. Thus the defendant having filed a written statement and pleas raised by him in the nature of defence in suit cannot be looked into while considering application for rejection of the plaint. Wisdom and guidance is sought from the judgment of the august Supreme Court of Pakistan rendered in case of Haji Allah Bakhsh v.
Abdul Rehman and others (1995 SCMR 459) wherefrom the relevant observations are given as follows:-- "The above contention seems to be devoid of any force. In order to press into service the provisions of Order VII, Rule 11, C.P.C., the averments contained in the plaint are to be presumed to be correct.
On the above assumption the plaint is to be examined and if the case falls under any of the clauses (a), (b), (c) and (d) of Rule 11, the plaint is liable to be rejected."
Similarly, in "Aurangzeb Khan v. Haq Nawaz and others, (PLD 2008 Peshawar 135)", the stated view was further affirmed by holding:-- "Once averments are made in the plaint, those averments only had to be taken into consideration while rejecting the plaint especially in the circumstances when in the instant case the defendant petitioner had admitted the factum of sale in his application for rejection of the plaint who had alleged its cancellation. In such situation serious disputed questions were involved which could only be thrashed out after recording of pro and contra evidence after submitting the written statement and framing of issues as held in Ghulam Dastagir and others v. Mst. Mariam and others (1993 MLD 1005 Karachi) and Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others (1993 MLD 2464 Lahore)."
In "Atta Ullah and 6 others v..Sanaullah and 5 others, (PLD 2009 Karachi page 38)" it was held that:- - "The plaint can only be rejected under clause (d) of Order VII Rule 11, C.P.C. if from the statement in the plaint the Court comes to the conclusion that the same is barred by any law. For deciding an application under Order VII Rule 11, C.P. C. the contents of the plaint has to be taken as true on its face value and the pleas raised in defence cannot be looked into. "
The plea of defence that the suit property has been further alienated and in absence of performing Talbs on the second transection the suit is not maintainable, requires evidence to ascertain as to whether the same is a genuine transaction or a result of collusion to ward off the right of preemptor of the petitioner/plaintiff. In Abdul Qayyum through legal heirs v. Mushk-e-Alam and another, (2001 SCMR 798), the honourable Supreme Court of Pakistan has held that:-- "Reverting to the question of second sale allegedly made by the vendee in favour of appellant No,2, it may be mentioned that though in the written statement, a specific ground was taken that the appellants should have preempted the said sale as the previous sale had become nonexistent but from the findings recorded by the trial Court under Issues Nos, 1 and 4 that no evidence was produced to prove the said issues by the appellants on whom onus was placed nor the same was pressed during final arguments, it is clear that the same were abandoned. These issues were answered against the respondents. Though the respondents could not file an appeal as the suit had been dismissed on other grounds but they could certainly under, Order XLI, Rule 22, C.P.C, support the judgment of the trial Court of dismissal of suit on other grounds also decided against them. It is, manifest from the judgment of the First Appellate Court which accepted the appeal of the appellants that no attempt was made by the appellants to argue either orally or by making application against the findings recorded by the trial. Court on Issues Nos, 1 and 4 against them. In the revision petition, it was stated in the narration of facts that the said second sale had been made but no ground was taken as a ground of attack against the findings of the trial Court under Issues Nos,1 and 4. Nothing was stated in the grounds of revision petition that the observations of the trial Court that the said issues were not pressed were not correct. The learned Judge of the High Court of his own without examining the case on the said issues in detail merely observed that the appellants failed to make any attempt starting from the Talbs upto the filing of pre-emption suit in respect of the subsequent transaction in favour of respondent. No,
2. Before recording such a finding, the findings of the trial Court under Issues Nos, 1 and 4 were required to be set aside and the second transaction of sale was to be scrutinized in the light of the ground taken by the appellants in the plaint that the same was not the real transaction but was created merely to create hindrances in the way of exercise of right of pre-emption by the appellants. "
The close perusal of the contents of the plaint clearly reveals a cause of action to the petitioner/plaintiff to bring a suit against the impugned sale. Indeed the suit has been filed within the prescribed period of limitation against the original transaction. The suit is neither barred by any law nor does it lacks disclosing a cause of action. Hence, while accepting the present revision petition, both the impugned orders are set aside. Resultantly, the application for impleadment of the alleged donee in the suit is accepted.