1. ' Ghulam Rasool petitioner filed a suit to pre-empt sale of land measuring 8 Kanals situate in the Revenue Estate of Bhakkar which sale took place in favour of the respondent vide Mutation No,2959 dated 24-9-1990. The suit was filed on 1-10-1990. The petitioner claimed superior pre-emptive right on the ground of being co-sharer in the Khata and being owner of the adjacent land to the land in question. The suit has been contested by the respondent and the learned trial Court on the basis of the pleadings of the parties settled verious issues. During the course of the trial of the suit, the petitioner submitted an application for production of notice issued by the petitioner to respondent No,1 or to allow the petitioner to produced secondary evidence. This application was contested and was rejected by the learned trial Court vide order dated 26-6-1991. This order was challenged in revision before District Court, Bhakkar which was dismissed on 14-9-1992. During the course of recording of evidence, learned Civil Judge refused to exhibit the original receipt of post office showing delivery of notice by the petitioner to respondent No,1. This order was challenged by the petitioner before District Court which petition was also dismissed on 14-9-1992. After recording of evidence, learned Civil Judge, Bhakkar, vide judgment and decree dated 26-6-1991 dismissed the suit. Petitioner has filed an appeal against this judgment which is pending adjudication in the Court of Ch. Muhammad Nawaz, learned Additional District Judge, Bhakkai. The interim orders passed by the learned Civil Judge as well as the District Court in revision referred to above have been challenged through this writ petition.
2. Mian Muhammad Nawaz, Advocate has appeared on behalf of the petitioner and has argued that the interim orders passed by the two Courts below are without a lawful authority and therefore are liable to be declared as such. I have asked the learned counsel to show from the plaint a copy whereof has been appended with this writ petition as to whether the petitioner made Talb-i- Muwathibat and Talb-i-Ishhad before filing of this suit. Learned cousnel has referred to paragraph No,3 (d) of the plaint, which has been appended at page 47 of this writ petition which reads s under:- {{URDU TEXT}} ' After the paragraph has been referred to by the learned counsel for the petitoner, I have asked the learned counsel to show as to whether the averments made in the plaint constitute making of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with the law declared in case of Government of N.-W.F.P. Through Secretary, Law Department. v. Malik Said Kamal Shah (PLD 1986 SC 360), learned counsel has frankly conceded that the allegations of making of Talabs in paragraph 3(d) do not satisfy the requirements Talb-iMuwathibat and Talb-i-Ishhad. I have asked the learned counsel that in view of this factual position, whether the plaintiff has any enforcible cause of action out of which this writ petition as well as the appeal have arisen, and as to whether the writ petition as well as the appeal can continue in view of the law laid down in cases of Government of N.-W.F.P.
2. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287), Malik Ghulam Nabi and others v. Member III, Board of Revenue and 5 others (PLD 1990 SC 1043), Rozi Khan and others v. Syed Karim Shah and others (1992 SCM R 445) and Zafar Ali v. Zainul Abidin and another (1992 SCM R 1886). Learned counsel is unable to satisfy me that the same can proceed and has almost conceded that without making of Talb-i-Muwathibat and Talb-i-Ishhad petitioner-plaintiff shall have no enforcible superior right of pre-emption, inasmuch as the superior right of pre-emption enforcible in the Courts of law comes into existence only if three Talabs in accord with the Injunctions of Islam are made. In view of the above, it stands established beyond doubt that the petitioner has absolutely no cause of action either to pursue this writ petition as well as the appeal which is pending before the learned Additional District Judge. I have asked the learned counsel for the petitioner to address the arguments as to why the proceedings of appeal arising out of the suit which are pending before the learned Additional District Judge, Bhakkar may also not be declared to be illegal and without a lawful authority and be dismissed, learned counsel has argued that the appeal is an independent proceeding and therefore cannot be dismissed in exercise of the Constitutional jurisdiction of this Court. On facts, however, he has failed to satisfy me that the suit can proceed.
3. It is an established principle of law that a still born suit which on the face of it does not disclose any cause of action is to be buried in its inception as held in case of Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 190). At pages 193 to 195 of the report, it has been held:-- "The first question that strikes one is that although under Order VII, rule 11, C.P.C. It is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases, does hear lawyers on the points involved in the application. In fact, this is what has happened in the present case.
3. ' The principles involved are two-fold: In the first place, it contemplates that a still born suit should be properly buried, at its inception. Secondly, it 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 case.
4. ' Order VII, rule 11 of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law.
5. ' A suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of rule 11 of the Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, rule 11, is not exhaustive. Hardly any authority is needed for such a proposition. I may, however, refer to some decisions on this point.
6. ' In the case of Thakur Piaribar Bakhsh Singh v. Thakur Jagannath Singh (AIR 1924 Oudh 413) where (at page 414) the Court proceeded to say:- ' On behalf of the appellant it is contended that the only grounds on which a Court is authorised to reject a plaint are those given in Order VII, rule 11 of the Code of Civil Procedure and that the Subordinate Judge had no jurisdiction to reject this plaint on the grounds taken by him. With this contention we are not disposed to agree. The instances given in the rules referred to cannot be regarded as exhaustive or as limiting the powers of a Court under section 151 of the same Code. We concur in the view taken by the Madras High Court in Lakshmanam and Chetty v. Lakshmanam Chettiar ILW 875: 25 IC 738 that a Court has jurisdiction, in a proper case, to dismiss a suit filed by the next friend of a minor, on the ground that it is not in the interests of the minor that the suit should be allowed to go on. The cases quoted in that ruling from 'Simpson on the Law of Infants'
7. (pp. 471 to 473) show that this is also the law in England'.
8. ' In Radhakishen v. Wali Md. AIR 1956 Hyd. 133 a number of cases have been discussed and the Court proceeded to observe thus (p. 134):-- `We do not altogether agree with the second contention of the learned Advocate that the plaint could not be rejected under Order VII, rule 11, C.P.C. No doubt Order VII, rule 11, gives instances of the rejection of the plaint in cases of non-disclosure of causes of action, undervaluation of the relief claimed, insufficiency of court-fees or claim being barred by any law; the instances given, in our opinion, cannot be regarded as exhaustive of all the cases in which a Court can reject a plaint or as limiting the inherent powers of the Court in respect thereof.'In the case of Mst. Deokali Koer v.
9. Babu Kedar Nath 16 CWN 838 which is a decision of a Division Bench of the Calcutta High Court, Sir Lawrence Hugh Jenkins, C.J., delivering the judgment of the said Bench, has observed (p.841) as follows:- ' If the Courts were astute--as I think they should be--to see that the plaints presented, conformed to the terms of section 42, the difficulties that are to be found in this class of cases, would no longer arise. Nor would plaintiffs be unduly hampered if the provisions of section 42 were enforced, for it would be easy to frame a declaration in such terms as would comply with the provisions of the section where the claim was one within its policy.'
10. ' It is 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 curable defect, but because of an express or implied embargo imposed upon it by or under law, should not be allowed to further encumber legal proceedings. Order VII, rule 11, C.P.C. Is obviously directed towards that end and is not, in my opinion, exhaustive.
11. ' Coming back to the facts of this case, I would like to say that, on a perusal of the plaint, there can be no doubt that the suit is incompetent. The plaint should be rejected outright even if it is held that the ground for its rejection is not fully covered by express language of Order VII, rule 11, C.P.C. What useful purpose would be served by allowing the defendant to file a written statement and, thereafter, to dismiss the suit after raising a contested issue to the effect that the suit is incompetent, when the plaint itself discloses a suit which is not countenanced by law? If the suit is prohibited and its incompetency is evident from a mere reading of the plaint it (plaint) should be rejected. Under clause (d) of rule 11 of Order VII the Court is required to reject a plaint where the suit appears from the statements in the plaint, to be barred by any law. In the present case although the suit may not be expressly barred by section 42 of the Specific Relief Act, the contention is that it is barred under law having regard to the requirement of the said section, namely section 42 of the Specific Relief Act. 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, in such a case, reject the plaint under its inherent power."
12. ' In view of the law declared in the cases referred to above, the suit out of which this writ petition and appeal have arisen, which appeal is continuation of the suit, are not maintainable as the plaint does not disclose any cause of action. Hence proceedings pending in appeal before the learned Additional District Judge Bhakkar in appeal titled `Ghulam Rasool v. Haq Nawaz' are without lawful authority inasmuch as the learned lower appellate Court has failed to perform its lawful duty by not rejecting the appeal in limine as arising out of a still-born suit. In exercise of the Constitutional jurisdiction, this Court can see as to whether the proceedings pending before a lower Court are with a lawful authority. The suit being incompetent and based upon no cause of action, proceedings thereof pending before the lower Appellate Court are patently without a lawful authority.
13. ' Resultantly, I -dismiss the writ petition in limine, and hold that the petitioner has no cause of action on the basis whereof his suit could proceed and hence the proceedings in appeal titled `Ghulam Rasool v. Haq Nawaz' pending in the Court of learned Additional District Judge, Bhakkar are declared to be illegal and without a lawful authority.