' MUHAMMAD. BASHIR JEHANGIRI, J.---Mumtaz Khan petitioner seeks leave to appeal against the dismissal in limine his Civil Revision No,36 of 1997 by the Peshawar High Court.
2. It appears that plaint, in a suit for possession through pre-emption filed by the petitioner against Nawab Khan and others, respondents, was rejected under Order VII, Rule 11(d), C.P.C. By a learned Civil Judge, Peshawar, on 7-12-1995, inasmuch as, according to the learned Civil Judge, in the notice of Talb-i-Ishhad the names of the attesting witnesses had been omitted as required under subsection (3), of section 13 of the N.-W.F.P. Preemption. Act, 1987 (hereinafter called as the Act). On appeal, the learned Additional District Judge, besides the aforementioned reason also upheld the order, dated 7-12-1995 for an additional reason that the suit had not been filed "within the prescribed period of 14 days under section 13 of the Act." The propriety and the legality of the two orders were challenged before the Peshawar High Court, Peshawar. The learned Single Judge, who was seized of the Civil Revision, set aside the finding of the First Appellate Court that the suit was barred by time under section 13 of the Act as it has not been filed within 14 days and rightly so in that the limitation prescribed for suit for pre-emption under section 31 of the Act was 120 days and not 14 days. The leaned Single Judge, however, concurred with the findings of the two Courts below on the following reasoning:-- "As regards the second contention it will not be necessary to go into the legal question regarding dispensation of Talb-i-Ishhad where Talb-iMuwasibat was made in presence of the vendee because in the plaint no such averment was made that the petitioner had made Talb-i-Muwasibat in presence of the defendant-vendee. Rather in paragraph 2 of the plaint the plaintiff has only named the witnesses in whose presence Talb-i-Muwasibat was made, by implication excluding the presence of the vendee. Even in the memorandum of appeal before the appellate Court the petitioner had not taken any ground that Talb-i-Muwasibat was made in the presence of the vendee. It was only before this Court that an affidavit was filed to that effect alongwith revision petition. Since the stand now taken before this Court was not the case of the petitioner before the trial Court or the appellate Court the impugned orders were passed on the basis of the pleadings of the parties, which did not carry any averment that Talb-i-Muwasibat was made in presence of the vendee. Thus, the impugned orders were passed in accordance with law as the notice of Talb- i-Ishhad did not include the names of the 2 attesting witnesses. In revisional jurisdiction this Court can only interfere if the orders of the lower Courts suffered from illegality or material irregularity.
Since the orders passed by the lower Courts were legally justified on the basis of the case presented to them no interference can be made therewith in revisional jurisdiction. Even otherwise the petitioner cannot be allowed to set up a new case before revisional Court which is not consistent with his stand before the lower Courts. For these reasons the revision petition has no merits and is dismissed in limine."
3. Mr. Jan Muhammad Khan, learned Advocate-on-Record, in seeking leave to appeal, contended that while the learned trial Judge erred in rejecting the plaint, the learned First Appellate Court and the learned Single Judge in the High Court were not legally justified to have upheld the order of rejection of plaint under Qrder VII, Rule 11(d), of the C.P.C., inasmuch as there was no statement in the plaint attracting the bar of any law for the time being in force.
4. Mr. Abdul Sattar Khan, learned Advocate Supreme Court, for the Caveator, on the other hand has urged with vehemence that as the plaint clearly showed that neither 'Talb-i-Muwasibat' nor 'Talb-i- Ishhad' had been made strictly in accordance with section 13 of the Act, it was obviously barred and, therefore, the learned Courts below were right in rejecting the plaint.
5. We have not been impressed by the reasoning adopted by the learned two Courts below and the learned Single Judge in the High Court. The 'bar of a suit under any law for the time being in force', cannot be legally taken at par with the 'extinguishment of the right of pre-emption under section 13 of the Act". Clause (d) of Order VII, Rule 11, C.P.C. Is applicable where the suit appears to be prime facie barred by any law, from a perusal of the statement in the plaint and no inquiry is needed. For instance, where a suit is time-barred, or is bad for multifariousness, or where a requirement as to prior notice has not been fulfilled or where consent of Advocate-General has not been obtained under section 92, C.P.C. Or the suit is filed by an unregistered Firm or issue raised concerning the execution, discharge or satisfaction of a decree and a cognizance is barred under section 47, read with Order XXI, Rules 22 and 103, C.P.C. The learned counsel for the respondents has not been able to bring to our notice any law under which the suit for pre-emption in the instant case was barred. So far as the extinguishment of right of pre-emption under section 13 of the Act, is concerned, it is altogether of a different connotation having no such implication as to bar the suit for pre-emption. The right of pre-emption could obviously be extinguished if the 'Talabs' have not been made at all or if made they were not made in accordance with the requirements of section 13 (ibid). This presupposes trial of issue of a fact. It does not, therefore, denote any such bar of the suit within the contemplation of clause (d) of Order VII, Rule 11, C.P.C.
6. We are of the considered view that the suit was not at all barred under clause (d) of Order VII, Rule 11, C.P.C. We are, therefore, inclined to convert this petition into an appeal, allow the same, set aside the impugned orders and remand the case to the learned trial Judge to proceed with the case strictly in accordance with law and decide the issues including the one as to whether the petitioner has been able to establish that he had made the requisite Talabs within the contemplation of section 13 of the Act." Costs to follow the event .