' This Regular Second Appeal arises from a judgment and decree dated 22nd January, 1982 of the learned Additional District Judge, Multan confirming the judgment and decree dated 16th June, 1979 passed by the learned Civil Judge, Khanewal dismissing the suit for specific performance of the contract filed by Syed Kazim Hussain Shah, appellant against Muhammad son of Fazil, respondent.
2. The facts leading up to this appeal in brief are that Muhammad, respondent was allotted land under C. L. A. Scheme. On 14th April, 1971, he entered into an agreement to sell the land measuring 30 kanals in favour of Syed Kazim Hussain Shah, appellant for a consideration of Rs, 16 000 and received Rs, 15,000 at the time of the execution of the agreement. Since the proprietary righ is had not been conferred in favour of the respondent it was agreed that sale deed will be executed after the confirmation of the proprietary rights when the balance will also be paid. The respondent got the proprietary rights on 28th February, 1978 but refused to execute the sale deed, whereupon, the appellant filed a suit for the specific performance against Muhammad/respondent. With the suit he filed an application for the grant of temporary injunction.
3. The learned trial Court recorded the statement of Syed Kazim Hussain Shah appellant on 16th June, 1979 and dismissed the suit on the ground that the agreement which was the basis for the suit for specific performance was illegal and void under section 19 of the Colonization of Government Land (Punjab) Act, the observation is as under :- {{URDU TEXT}}
4. Feeling aggrieved the appellant filed an appeal and the learned District Judge, Multan treating the order of the trial Court as an order of rejection of the plaint under Order VII, rule 11, C. P. C.
Dismissed th appeal. In his judgment he stated :- "It is clear from the plaint as well as from the statement of the plaintiff-appellant recorded by the learned trial Court in which it has been clearly stated and admitted by the plaintiff-appellant that this is colony land and no permission for sale was procured from the Collector or the Commissioner. He was in full knowledge of this fact. He was also in the knowledge that this land could not be transferred by the defendant under the law in favour of any body. In spite of that he entered into this contract. In view of all these things, the contract entered into was illegal, null and void and could not be enforced in a Court of law. The trial Court, therefore, was justified in dismissing the suit and I confirm the judgment and the decree of the lower Court and dismiss this appeal having no force."
4. The learned counsel for the appellant has contended :
(i) that the learned Courts below were not legally justified to look into the statement of the plaintiff recorded by the trial Court for rejecting the plaint under Order VII, rule 11, C. P. C.
(ii) that the appellant had only entered into a contingent agreement for sale and that the suit was filed after the proprietary rights had been acquired by the respondent and as such the provisions of section 19 of the Colonization of Government Lands Act, were not attracted to the facts of the present case.
5. On the other hand, the learned counsel for the respondent has vehemently supported the impugned judgment and decree and argued that since at the time of the agreement the possession was also delivered to the appellant/plaintiff, the agreement in dispute was clearly illegal inasmuch as the respondent was not competent to sell the land without prior permission of the Collector.
6. After hearing the learned counsel for the parties and going through the plaint, statement of the plaintiff recorded on 16th June, 1979 and the impugned judgment I find sufficient force in the first contention raised by the learned counsel for the appellant. Order VII, rule 11, C. P. C. Is as under : Order VII, rule 11, C. P. C.-The plaint shall be rejected in the following cases -
(a) where it does not disclose a cause of action ;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the,plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so ;
(d) where the suit appears from the statement in the plaint to be barred by any law ; ' It would also be convenient to refer here to the relevant part of the judgment of the trial Court which reads as follows {{URDU TEXT}} ' It is also clear from the judgment of the appellate Court that while confirming the judgment and decree of the trial Court the statement made by the plaintiff was also taken into consideration and has been made the basis for arriving at the conclusion.
7. The above analysis makes it very much clear that both the learned Courts below have rejected the plaint not at its face value but have rejected the same after taking into consideration the other factors i. e. Statement of the plaintiff and document Exh. P-1. It is well settled that in order to C reject the plaint the averments contained in the plaint are only to be looked into and Court has to apply its mind to the facts given therein and has not to consider any other matter. It has to be presumed that every averment in the plaint is true. It can reject the plaint if it comes to the conclusion that if all the allegations in the plaint are proved the plaintiff would not be entitled to any relief 'Whatsoever.##TE#
8. In this view of the matter I am of the opinion that the impugned judgments and decree of both the learned Courts below wherein the Courts have considered the factors other than the plaint itself cannot sustain and are liable to be set aside. The case is, therefore, remanded back to the trial Court for proceeding according to law.
' As for the second contention, i. e. The question of the legality of the agreement dated 16th June, 1979, 1 find this objection has been specifically raised in the written statement. In the circumstances of the case, the question of the legality of the agreement is not as easy as has been taken by the learned Courts below.
' Since the case has to be remanded as observed above it would be in the fitness of things if the question of the legality of the agreement dated 16th June, 1979 is left undecided by this Court, so that the trial Court may after framing a specific issue in the light of the preliminary objection, after affording opportunity to the parties to lead the evidence, decide the same.
' For what has been stated above this appeal is allowed, the impugned judgments and decree of both the learned Courts below are hereby set aside with no order as to costs.