SAVED ZAHID HUSSAIN, J. -- This is a petition under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973 against judgment dated 22.2.1987 of the learned Addl. District Judge, Vehari, whereby he accepted the revision filed by respondent No. 2, and set aside the order of the learned Trial Court dated 23.1.1986.
2. The case of the petitioner is that respondent No. 2 (who is now represented by, his L.Rs.) who is her real brother, had agreed to sell the house in dispute vide agreement dated 23.8.1967, for Rs.2000/ and was put into possession. The formal sale-deed had to be executed later on.
Eventually the house was transferred in the name of the said respondent for which the price was paid by the petitioner and transfer order was issued on 7.3.1984 and mutation was also sanctioned on 14.5.1984. He thereafter refused to execute the sale-deed. The petitioner thus had to file suit for specific performance on 2.1.1985. Respondent No. 2 filed written statement, he did not deny the execution of the agreement dated 23.8.1967 and pleaded the recession of the agreement. The learned Trial Court framed issues on 20.4.1985. The case was set for recording of the evidence when respondent No. 2 made an application under Order VII, Rule 11, CPC for rejection of the plaint. The petitioner contested the application, inter alia, that the controversy between the parties had already been crystalized in the issues and that the transfer having been affected on 7.3.1984, there was no impediment in suing for the performance of agreement.
3. On 23.11.1986, the learned Trial Court rejected the application and observed that issue No. 5 had already been framed, which could not be decided without recording of evidence. This order of the learned Trial Court was challenged by respondent No. 2 in revision, which was accepted by a learned Addl. District Judge vide judgment dated 22.2.187 and ordered the rejection of plaint. This judgment of the learned Addl. District Judge has given rise to the present petition under Art. 199 of the Constitution.
4. Due to non-appearance of respondent No. 2, this petition has to be heard ex parte, as non reappeared despite repeated notices by the office and publication of notice in the daily "Nawa-e- Waqt".
5. The learned counsel for the petitioner contends that the revisional order of the learned Addl.
District Judge is illegal and without lawful authority, inasmuch as the learned Trial Court had rejected the application for rejection of the plaint for valid reasons and there was no justification whatsoever to interfere with the said order. It is contended that when the issues had been framed the parties should have been allowed an opportunity to produce evidence in support of their respective pleas and the plaint could not he rejected summarily at this stage.
6. It is by now a settled law that for invoking the provisions of Order VII, Rule 11, CPC to reject a plaint summarily, the contents of the plaint are to be taken into consideration. It was held in Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCM R 826) that:- "The law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, CPC cannot take into consideration pleas raised by the defendant in the suit in his defence, as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record."
The very fact that respondent No. 2 submitted written statement and issues had been framed by the Court, would show that the suit was triable by the Court and was not a case of summary rejection. The important aspect is that the agreement was not denied by respondent No. 2. The grounds on which the learned Addl. District Judge, proceeded to reject the plaint, had already been a point of controversy and issues framed accordingly. These are questions of facts and law requiring determination on the basis of evidence led by the parties. In the facts and circumstances of the case, the plaint could not he ordered to he rejected by the revisional Court.
7. Since I am constrained to observe that the revisional Court acted illegally and without lawful authority in setting aside of the order of learned Trial Court,, I have intentionally avoided to make any observation (except absolutely necessary for decision of this petition) which may have any adverse effect on the merits of the case of any of the parties. It is observed that any finding rendered or observation made by any of the Courts in these proceedings, should not in any influence the approach of the Trial Court, in deciding the case on merits.
8. In view of the above, the revisional order of the learned Addl. District Judge dated 22.2.1987 is declared to he illegal and of no legal effect , as a result whereof, the suit of the petitioner shall he deemed to be pending before the learned Trial Court, who shall proceed with the same. Since the suit was filed in the year, 1985, it will be desirable if the learned Trial Court decides the same after giving the parties due opportunity, expeditiously. This petition is accepted with the above observation.
No order as to costs.