SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been preferred against the judgment and decree of the High Court dated 18-11-1996, whereby accepting the revision petition filed by Jamal Hussain and others, respondents herein, the plaint was rejected under Order VII, rule 11, C.P.C. On the ground that the same did not disclose a cause of action.
2. The brief facts of the case are that a pre-emption suit was filed by the appellant, herein, alleging that the agreement-to-sell dated 31-5-1995, was in fact a sale-deed but the same was garbed as an agreement-to-sell to deter the plaintiff-appellant from exercising his right of pre-emption.
Initially, an application was submitted in the trial Court by the defendants-respondents that the pre-emption suit may be dismissed because the plaint did not disclose a cause of action. After hearing the parties, the trial Court rejected the application vide its order, dated 30-10-1995, observing that in view of the averments made in the plaint, it cannot be said at this stage that the plaintiff had no cause of action. It was observed 'that the question as to whether the agreement- to-sell which has been pre-empted is tantamount to a sale-deed or not, is to be seen after recording the evidence, However, on revision to the High Court, the order of the trial Court was set aside.
3. We have heard the arguments and gone through the file. Mr. Muhammad Ibrahim Zia, Advocate, the learned counsel for the appellant, has argued that under section 4 of the Right of Prior Purchase Act, any alienation which purports to be other than sale can be declared a sale for the purpose of pre-emption. The learned counsel has drawn our attention to the contents of the plaint wherein it has been specifically alleged that in fact the land was sold but instead of executing a sale-deed, an agreement-to-sell was executed so as to deprive the prospective pre-emptors of exercising the right of pre-emption. The learned counsel has argued that during the pendency of the suit, the defendants filed an application for the rejection of the plaint alleging that a sale-deed of the suit land had been executed and, thus, the suit was not maintainable.
Consequently, the plaintiff-appellant made an application for the amendment of the plaint which was still sub-judice. The learned counsel has argued that irrespective of the question of amendment, the fact remains that a bare reading of plaint clearly shows that it is preposterous to suggest that the plaint does not disclose any cause of action. The learned counsel has referred to a case reported as Mir Qamar-ul-Zaman v. Agricultural Development Bank of Pakistan, Muzaffarabad (1995 CLC 1982), wherein it has been held that for ascertaining the cause of action in a suit, the Court must apply its mind to the averments made in the plaint for ascertaining as to whether presuming averments made in the plaint to be true, the plaintiff is entitled to any relief; if the Court comes to the conclusion that, prima facie, the plaintiff may get the relief claimed, the plaint cannot be rejected for non-disclosure of cause of action.
4. In reply, Sardar Iqbal Hussain, Advocate, the learned counsel for the respondents, has. Argued that in fact when the suit was pending, the sale-deed with regard to the suit land was executed in favour of the respondents. According to the learned counsel for the respondents, the sale was completed when the regular sale-deed was executed and, thus, the agreement-to-sell does not give any cause of action to the plaintiff-appellant for filing a suit for pre---emption. The learned counsel has referred to section 20 and Order VII, rule 11 of the Code of Civil Procedure to substantiate his contention. He has also referred to a case reported as Sher Muhammad v. Rajada (PLD 1981 SC 591), wherein it has been held that limitation for filing a pre-emption suit would start if sale is completed and possession is delivered to the vendee, notwithstanding that mutation was attested or not.
5. Obviously, the authority cited by the learned counsel for the respondents has no relevancy to the case in hand. It is settled principle of law that at after perusing the plaint, the Court comes to the conclusion, that the averments made in the plaint, if presumed true, the plaintiff may get the relief sought, the plaint cannot be rejected for absence of a cause of action. In the instant case, as has already been pointed out, the case of the plaintiff-appellant is that in fact the suit land was sold and an agreement-to-sell was executed merely to deprive the prospective pre-emptors of exercising their right of pre-emption. The onus is upon the plaintiff to prove, that transaction which took place between the parties was in fact a sale and that was merely garbed as an agreement- to-sell with ulterior motives. Thus, the trial Court has rightly held that it could not be said that on the relevant date, the plaint did not disclose a cause of action. It may be pointed out that if a defendant seeks rejection of a plaint for the non--disclosure of cause of action, he has to show that even if the allegations in the plaint are presumed to be true, the plaintiff was not entitled to any relief. In the instant case, it is not correct to suggest that even if the averments made in the plaint are presumed to be true, the plaintiff is not entitled to the relief claimed.