' This appeal, by way of leave of the Court, is directed against the judgment and decree passed by the High Court, on 25-1-1999, whereby the appeal filed by respondent No,1 herein, was accepted.
2. The necessary facts, giving rise to the present appeal, are that according to the appellant Plot No,5, measuring 4 Kanals, situate in Sector F/1 Mirpur, was purchased by the appellant from respondent No,1 through an affidavit, dated 13-5-1979. After the execution of the above document the appellant took over the possession of the plot and constructed a boundary wall along with a gate and a room over the said plot. The Registrar Cooperative Societies auctioned the said plot on 13-2-1980. The illegal proceedings of auction were challenged by the appellant through a civil suit, wherein the prayer was made that the auction of the said plot was without any lawful authority and the same was inoperative on the rights of the appellant. In the alternative a prayer was made for recovery of an amount of rupees four lacs, the price of the plot which was paid by the appellant to respondent No,1 at the time of purchasing the said plot. The suit filed by the appellant, herein, was held as abated by the District Judge, Mirpur on 21-7-1987, on account of operation of law of recovery and repayment of loans. The judgment and decree of the District Judge were challenged by the appellant by filing an appeal before the High Court. The High Court remanded the case to the Trial Court to be tried and decided in accordance with law, to the extent of recovery of consideration amount as claimed by the appellant. The aforesaid judgment and decree were challenged before the Supreme Court by the appellant as well as respondent No,1, but the judgment of the High Court prevailed on account of difference of opinion between the learned Members of the Bench, as such the case stood remanded to the District Judge. Respondent No,l appeared through counsel before the Trial Court and moved an application for setting aside ex parte proceedings which was dismissed. However, the respondent was allowed to participate in the proceedings of the case onwards. The respondent again became absent and an ex parte decree was passed by the District Judge Mirpur on 30-11-1995, against him. The judgment and decree, dated 30-11-1995, were challenged by respondent and the appeal was accepted by the Division Bench of the High Court on 25-1-1999, as such the suit filed by the appellant was dismissed.
3. The appeal filed by the respondent before this Court, on account of difference of opinion between the learned Members of the Bench constituting the Court, was dismissed by the Hon'ble Chief Justice while Mr. Justice Basharat Ahmad Shaikh, the other Member of the Bench, accepted the appeal filed by the appellant on 24-3-2000. On account of difference of opinion the matter has been referred to me for hearing and disposal.
4. In support of appeal it was vehemently contended by Ch. Muhammad Riaz Alam, the learned counsel for the appellant, that the High Court was wrong in observing that the plaintiff-appellant disclosed no cause of action in his plaint against the defendant-respondent. The learned counsel submitted that a definite relief has been claimed against respondent No,1 in the prayer clause that in the alternative the appellant was entitled to the amount of consideration to the tune of rupees four lacs but this aspect of the case totally escaped the notice of the High Court. The learned counsel submitted that as to whether a plaint discloses a cause of action or not the entire plaint is to be read together and the one allegation cannot be read in isolation from the other. The learned counsel pressed into service the submission that When the relief clause is read together with the other paras. Of the plaint, it certainly discloses a cause of action against respondent and, thus, entitles the plaintiff-appellant to recovery of amount paid to respondent as price of the plot. The learned counsel also contended that even if a relief is not specifically claimed, the same can be given if it flows from the averments made in the plaint. The learned counsel relied upon the following authorities in support of his contentions:--- ' In a case reported as Mardan Ali v. Rab Nawaz (1991 CLC 82), it has been observed that the Court is competent to grant such a relief which the justice demands. Thus, it was held that the Courts below had rightly granted relief to the plaintiff which was flowing from the reading of plaint as a whole and was not inconsistent with the other allegations made in the plaint.
' In a case reported as Alvia Tableeghi Trust v. Mujeebur Rahman Alvi (1984 CLC 796), it has been observed that relief arising out of the pleadings and falling within four corners of the controversy in issue between the parties can be granted by the Court in addition to or in substitution for the relief specifically prayed for.
' In a case reported as Mst. Resham Jan v. Muhammad Fazil and another (PLD 1981 Azad J&K page 16), it was observed that a cause of action rests on bundle of facts alleged Li the plaint along with the relief which has been sought for and the entire plaint is to be looked into while determining as to whether the same disclosed the cause of action or not.
5. In reply Ch. Muhammad Bashir, the learned counsel for respondent No,1, has argued that a point which has not been raised by a party in its plaint, evidence on such a point cannot be looked into.
He has further argued that no relief could be given to the appellant on a ground which he has not raised in his plaint. The learned counsel pressed into service the submission that the High Court has rightly observed in the impugned judgment that no averment was made by the plaintiff- appellant against Muhammad Walayat, respondent No,1, in terms that he defrauded the plaintiff- appellant or he was otherwise responsible for depriving the plaintiff of the possession of the plot in question. The learned counsel strenuously argued that the whole of the plaint shows the cause of action against the other respondents except respondent Muhammad Walayat. The plaintiff- appellant only in the relief clause prayed that in the alternative a decree may be passed in his favour against respondent Muhammad Walayat for recovery of an amount of rupees four Lacs.
According to the learned counsel in fact the whole plaint is based on the facts disclosing the cause of action challenging the recovery proceedings by other respondents. In the body of plaint nowhere it has been averred by the appellant that in any way the cause of action arose to the plaintiff-appellant against defendant-respondent No,1 . Thus, the point having not been raised in the plaint, according to the learned counsel, could not be allowed to be taken up by the plaintiff after having failed to get the necessary decree against the other respondents. The learned counsel in support of his contentions has cited the following authorities to substantiate his view point:--- ' In a case reported as Yusuf v. Hashimbhoy & Co. (PLD 1966 Kar. 457), it was held that the plaintiff cannot be allowed to prove the facts which he had not pleaded in his plaint.
' In a case reported as Muhammad Amin v. Muhammad Yunus (1993 SCR 340), it was held that plea which is not taken in the pleading cannot be looked into.
' In a case reported as Syed Afzal Hussain v. Karachi Transport Corporation (PLD 1997 Kar. 253), it has been observed that a party cannot be permitted to travel beyond its pleadings and prove a case which such party has not set up in its pleadings.
' In a case reported as Siddique Muhammad v. Mst. Saran (AIR 1930 Privy Council 57), it has been held that where a claim has never been made in the defence such claim cannot be considered at all.
6. After giving my due consideration to the arguments advanced by the learned counsel for the parties and perusing the record, I am of the view that the appellant purchased the plot in question from respondent Muhammad Walayat for a consideration of Rs,3,75,000 and, according to the plaintiff-appellant himself, the possession was obtained by him after the payment of consideration amount. It is the case of appellant himself that as the plot in question could not be regularly transferred in his name by the M.D.A. At the relevant time, thus, he purchased the same on the basis of an affidavit. After some time since respondent Muhammad Walayat was a borrower of the Bank, therefore, as a result of recovery and repayment proceedings the plot which stood in his name despite the fact that it had been transferred to appellant was auctioned by the Registrar Cooperative Societies. Feeling aggrieved with the proceedings of auction of the plot in dispute by the Registrar Cooperative Societies, the appellant brought a suit challenging the proceedings of auction by making various allegations in his plaint which clearly disclose cause of action against the Registrar Cooperative Societies and other respondents except respondent Muhammad Walayat. In the whole body of the plaint there is not a single allegation of fact or otherwise alleged by the plaintiff-appellant against respondent Muhammad Walayat to the effect that despite the fact that he was a borrower of a dissolved Cooperative Bank, he defrauded the plaintiff-appellant by concealing this fact or that because of any act or omission of respondent Muhammad Walayat the plaintiff was deprived of the possession of the plot in question.
7. In a case reported as Mst. Resham Jan v. Muhammad Fazil and another (PLD 1981 Azad J&K page 16), it was held as under:--- "Order VII, Rule 1 contemplates that a plaint shall contain the facts constituting the cause of action and when it arose. The plaint shall contain material facts and the grounds establishing the right of the plaintiff. The cause of action refers in general sense to and signifies averment of, fact or state of facts giving rise to a claim or right of plaintiff against defendant, sufficient to enable a Court to render judgment or to grant relief.
8. As said earlier in the instant case the plaintiff-appellant made no averment against respondent with regard to the consideration amount that the same was received by him by practicing a fraud upon the plaintiff or by deceiving him. The law stands settled by now that if in the pleading of a party there is no allegation against a particular defendant with regard to the existence of a certain right in favour of plaintiff and its denial by defendant, that relief cannot be given to the plaintiff. It will not be out of place to mention here that since there was no allegation of any fact against defendant-respondent Muhammad Walayat, therefore, even no issue was framed by the Trial Court with regard to the repayment of consideration amount.
9. .
10. It may also be clarified that the suit filed by the present appellant was initially dismissed on the ground of abatement on 21st of July, 1987, after reaching the conclusion that upon the establishment of a Tribunal under the Azad Jammu and Kashmir Cooperative Banks (Repayment and Recovery of Loans) Act, 1987, the dispute raised in the suit fell within the exclusive jurisdiction of the said Tribunal. When the appeal was filed by the present appellant before the High Court which was decided on 24th of January, 1991, a learned Judge in the High Court remanded the case to the Trial Court. Two appeals were filed in this Court, one by Muhammad Walayat and the other by Al- Haj Muhammad Saleem, appellant herein. There was difference of opinion between the learned Members of the Bench with the result that the judgment of the High Court was treated as judgment of the Supreme Court. As a result of this judgment the case stood transferred to the Trial Court observing therein that the suit of plaintiff-appellant would be tribal by the Trial Court as there was a prayer in the prayer clause for granting a decree of four lacs rupees against respondent Muhammad Walayat.
11. During the course of arguments it was vehemently urged by Ch. Muhammad Riaz Alam, the learned counsel for the appellant, that in the previous judgment, which was authored by S.Z.
Chaudhri, J. On 24th of January, 1991, it was observed that the suit against Muhammad Walayat was triable by Civil Court and it had been wrongly dismissed by the Trial Court. It was further observed by S.Z. Chaudhri, J. In a following manner:--- "It is an admitted proposition of law that if transferor having no title in a property makes a transfer through a sale, the transferee cannot be deprived of the consideration amount which he might have paid to the incompetent transferor. He under law has all the right to sue the transferor for the repayment of the amount thus paid by him."
' The learned Judge in the High Court further opined that the impugned judgment and decree to that extent are, therefore, held as not sustainable. The suit filed by the plaintiff-appellant to the extent of his claim for recovery is maintainable. The impugned judgment and decree to that extent stand modified. The appeal is, therefore, partly accepted in the terms indicated above and the case is remanded to the Trial Court to be tried and decided in accordance with law to the extent of recovery claim as against defendant-respondent No,4.
11. In my estimation the argument of the learned counsel for the appellant cannot be accepted as correct that it was finally determined by the High Court that the plaintiff-appellant was entitled to the recovery of consideration amount of four lac rupees from defendant-respondent Muhammad Walayat. Had it finally been determined by the High Court, then there seems to be no point in remanding the case to the Trial Court for its trial and final determination. In my view the above observations are just and obiter-dicta or in other words merely for the purpose of remanding the case to the Trial Court to try the suit and to decide the question of consideration amount. After remand of the case by the High Court the Trial Court passed a decree of Rs,4,00,000 in favour of plaintiff-appellant against respondent Muhammad Walayat. However, on appeal the High Court observed that keeping in view the averments made in the plaint it did not disclose any cause of action against defendant-respondent Muhammad Walayat, as such the appeal filed by Muhammad Walayat was accepted and the suit filed by the plaintiff-appellant was dismissed.
12. It is indeed correct that if a transferor having no title in a property makes a transfer through a sale, the transferee cannot be deprived of the consideration amount which he might have paid to the incompetent transferor, but the question is as to whether the plaintiff-transferee has alleged so in his plaint or not. When it has not been alleged by the plaintiff-transferee that defendant had no title to transfer the plot in question and thereby deceived the plaintiff by receiving a certain amount, the transferee is certainly not entitled to recover the amount, but as said earlier, this does not seem to be the case of the plaintiff-appellant. The sum and substance of the entire plaint relates to the recovery proceedings initiated by the Registrar which were challenged by the plaintiff-appellant and it was specifically averred in the plaint that cause of action accrued to the plaintiff against the respondents when the auction of the said plot was made. It also transpires from the averments made in the plaint that according to the plaintiff, respondent Muhammad Walayat was not a borrower of any dissolved Bank and as such the proceedings for auction were illegal and beyond any jurisdictional competence.
13. In the light of what has been stated above, I agree with the viewpoint of the learned Chief Justice and order the dismissal of appeal. However, in the circumstances of the case costs in this Court shall be borne by the parties.