ABDUL RAHIM KAZI, J.- This matter has been called three times since morning. It is now 11.30 a.m.
None is present for the plaintiff. The record shows that notice was sent to the learned counsel for the plaintiff throught Bailiff and also a notice was sent to the defendant Wazir Ali through registered post A/D, which has been returned un-served. Mr.M.Siddiqi Shaikh, Advocate for Defendants No.2,4 to f and 10,14 is present. The matter is taken up for hearing.
2. This is an application moved by the learned counsel for Defendants No.2,4 to 7 and 10 to 14 under Order VII rule 11 C.P.C, for rejection of the plaint on the ground that the suit is barred under sections 42 and 56 of the Specific Relief Act; and that the plaint does not disclose any cause of action. The case of the plaintiff as per plaint is that the plaintiff who is the were of Defendant No.3 had entered into an Agreement of Sale with her deceased father-in-law (Defendant No.1) for the purchase of a building, Namely, WAZIR MANSION situate at Nicol Road, Karachi (birth place of Quaid-e-Azam). The plaintiff has also urged that part payment was made by the plaintiff on 16-7-1977 while the batencs was to be paid by her on 19-4-1990;and that in case the remaining balance was net paid by this date, the same shall be deemed to have been waived.It is also eJaimed that physical possession and control of the building was assigned to the plaintiff; and that the deceased defendant No.1 had hand over property documents to the plaintiff.
3. It is settled law that in case of dealing with an application under Order VII rule 11 C.P.C., it is the plaint and its accompaniment only which are to be taken into consideration and if from these documents , the suit appears to be barred by law or the plaint does not disclose any cause of action then the plaint is to be rejected. This provision, however, is not exhaustive. The principle underlying this provision is that a still-born suit is to be burred at its very inception. It may further be observed that the provisions of order VII rule 11 C.P.C contemplate that no further time be consumed on a fruitless litigation and also that h gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted suit. In the present case, the suit is based on an agreement to Sell which by itself would not create a title in the plaintiff. The declaratory relief sought by the plaintiff is as under; "The plaintiff be declared and allowed to have the plot and property (Wazir Mansion) on Plot No.1 survey sheet No 3 Serai Quarters measuring 1500 sq.Yds. Situated on Nicol Road, mutated on her name in The office of the C.D.C. From the name of Defendant No.1 Wazir Ali Allahdin. Earlier mutation on the name of defendants be declared void."
As stated above, the suit having been based on Agreement of Sale, obviously the course open to the plaintiff is to file a suit for specific performance and not a suit for declaration under section 42 of the Specific Relief Act, which reads as under; "Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief then a mere declaration of title, omits to do so.
Explanation.- A trustee of property is a 'person interested to deny a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee."
In view of above provision, the declaration can be with regard to any legal right or character or interest vesting in the plaintiff. In the present case, the plaintiff has only an Agreement to Sell by the deceased Defendant No 1 in her favour. An Agreement to sell perse does not create any title in the property in favour of the purchaser but it contemplates the execution of another document, namely, a Sale Deed, which is required to be properly executed and registered under the provisions of Registration Act as provided under section 54 of the Transfer of property Act and then only, the purchaser could acquire a title in the property. In rhe nresent case admittedly the alleged agreement was executed by the deceased Defendant No.1 whereas the Defendants No.2 to 14 are the widow, sons and daughters of the deceased Defendant No.1. In these circumstances it was open to the plaintiff to have filed a suit for specific performance under section l2 of the Specific Relief Act and not under section 42 of the Specific Relief Act for the declaration as mentioned above. By an agreement of sale the transferee only promises to agree to sell by way of a document and if subsequently he or his successors refuse to do so then it would be for the transferee to seek the remedy by way of specific performance and not by way of filing a suit for declaration of the title. From the above discussion the very suit of the plaintiff is not maintainable. Reliance may be placed on the case of Mst. Resham Jan & 3 others vs Mohammed Lateef & another (PLD 1987 SC
(AJK) 93).
4. As discussed above, it may be observed that it is a necessary incidence in the trial of judicial issues that a suit which is, on the face of it incompetent, not because of any formal, technical or cureable defects but because of an express or implied embargo imposed upon it by or under law, such suit should not be allowed to further encumber legal proceedings. If as a result of the provisions of law the suit is barred, it would be barred under law, although strictly speaking it may not be specifically barred by law in express terms. The Court should even in such case reject the plaint under its inherent power. In support of above contention the reliance is placed on a Division Bench decision of Dacca High Court in case of Burmah Eastern Ltd vs Burmah Eastern Employees Union & others (PLD 1967 Dacca 190).
From the above discussion, I am convinced that the present suit is barred by law and accordingly the plaint is rejected with no order as to costs.Dismissed for non-prosecution.