' This civil revision assails the orders/decrees, dated 28-5-2003 and 3-7-2003 passed by the learned Civil Judge and the learned Additional District Judge, Jhang, deciding lis against the petitioner.
2. Precisely, relevant facts are that the petitioner filed a suit for possession through pre-emption against a sale through decree, dated 26-2-2002 passed in a suit of the respondent for specific performance of a contract, regarding land measuring 8 Kanals and 18 Marlas, detailed in the plaint.
The petitioner averred in his plaint that the respondent kept his decree, in a guarded secret which came to his knowledge on 18-5-2002 at 8-00 a.m. Through one Ali Muhammad, whereupon he immediately announced his intention of filing a pre-emption suit and thereafter sent a notice attested by two truthful witnesses, making Talab-e-Ishhad. Superior pre-emptive right was claimed as "Shafi Sharik" of the land in dispute. The respondent being defendant in the suit besides contesting the suit through his written statement whereafter issues were framed by the learned trial Judge, filed an application under Order VII, rule 11, C.P.C. Praying rejection of the plaint on the ground that the decree sought to be pre-empted is not complete sale, thus, the same cannot be subjected to process of pre-emption laws, unless and until some sale-deed is executed or mutation is sanctioned on the basis thereof.
3. The learned trial Judge who was seized of the matter in spite of having already framed an issue, covering this controversy, after obtaining reply of the application under Order VII, rule 11, C.P.C.
Rejected the plaint, holding that the suit for pre-emption is premature, sale-deed having not been executed and mutation by that time, having not been sanctioned vide his order and decree, dated 28-5-2003.
4. The petitioner aggrieved of the decision of the trial Court, dated 28-5-2003 filed an appeal before the learned Additional District Judge but remained unsuccessful as his appeal was dismissed on 3-7-2003. He thereafter, filed the instant revision petition for annulment of orders/judgments of both the Courts below. The respondent, on notice by this Court, is represented through his counsel.
5. The learned counsel for the petitioner submits that in view of dictum by the Honourable Supreme Court in the case of Khursheed Ahmad and 4 others v. Syed Akhtar Hussain Gilani and 4 others PLD 1991 SC 1070, decree in a suit for specific performance is pre-emptible and as such, both the Courts below have wrongly said that the suit of the respondent is premature. He further submits that the sale-deed under the decree, dated 26-2-2002 was executed on 11-1-2003, pending suit of the petitioner and on its basis, a mutation was also sanctioned thus, both these acts having been completed before the date on which his plaint was rejected, according to him, cause of action, if at all, was premature, attained its maturity, and on this score his plaint could not have been rejected.
He also contends that the plaint as it stood, did disclose a cause of action and thus, the same could not have been rejected, without recording of evidence, especially when a specific issue regarding the matter in dispute, was already framed. According to his submissions, plaint could not have been rejected on the ground of it being premature.
6. The learned counsel for the respondent refuted the submissions of the petitioner, supported the judgments/orders of the two Courts below and urged that the sale as mentioned in section 2(d) of the Punjab Pre-emption Act, 1991, means permanent transfer of ownership of an immovable property and in terms of this definition, a decree in a suit for specific performance does not amount to permanent transfer of ownership, as such, the suit of the petitioner was premature, on the date, on which it was filed. He further referred to section 30 of the Act ibid, to contend that unless and until, sale-deed is executed or mutation is sanctioned, the suit by the petitioner was not competent. Accordingly to his submissions neither the petitioner had any cause of action to file the suit , against the decree, dated 26-2-2002 nor the same was disclosed by the plaint, hence, the same was rightly rejected. Answering the submissions of the petitioner, he argued that the judgment in the case of Khursheed Ahmad (supra) is not applicable to the case in hand, because in the precedent case, pre-emptibility of the decree was determined by the Honourable Supreme Court on the touchstone of Punjab Pre-emption Act, 1913.
7. I have given my anxious consideration to the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, the suit for specific performance was decreed on 26-2-2002 on the basis of which the sale-deed has also been executed in favour of the respondent on 11-1-2003 earlier to the date of order rejecting the plaint.
Though in view of judgments of the Honourable Supreme Court in the cases of Khursheed Ahmad (supra), Malik Tahir Ahmad and others v. Tanseef-ur-Rehman and others 1988 SCM R 1861 and Hassan Khan and another v. Zaheerullah and 3 others 1988 SCM R 1333, the suit against the decree simplicitor was not premature, yet if at all, it was premature, cause of action having attained maturity before the order of the trial Court, plaint could not have been rejected under Order VII, rule 11, C.P.C. Because it did disclose a cause of action on the day of order, dated 28-5-2003. In the case of Muhammad Ashraf and 6 others v. Muhammad Abdullah Khan PLD 1981 Lah. 33 it was held by this Court that cause of action in favour of the plaintiff maturing, pending suit, he cannot be non- suited. In this case, the plaintiff had no cause of action at the time of institution of the suit and it accrued to him pending suit and it was held that at the time of decision of the case the plaintiff having cause of action cannot be non-suited. It is also not denied that the trial Court had already framed all the issues arising out of pleadings of the parties and one of those covered the controversy of pre-emptibility of the decree in the following words:-- ' "if the law permits sale without registration, it will be treated as sale for the purpose of pre- emption?"
8. Dispute as to whether the land subject of decree in the suit for specific performance by the respondent, permanently vested in him or amounts to permanent transfer of ownership of the said land in his favour, was a matter which could not be determined without recording of evidence and for this purpose issue having already, been framed, the parties should have beew given chance to lead, evidence in support of their respective stances. The ground of prematurity of suit was traversed and the petitioner could not succeed in his suit without proving his right to judgment, in this manner as well, rejection of plaint, after framing of issues was not justified.
9. The reference to sections 2(d) and 30 of the Punjab pre-emption Act, 1991 by the respondent is misplaced. Under section 2(d) fact of prematurity of the suit, can be only assessed in the suit at the time of conclusion of the trial that some permanent transfer of ownership in immovable property, in exchange of a valuable consideration, had taken place in favour of the respondent/vendee or not. Prima facie, on the face of the decree it has an effect of permanently transfer of the property subject of it and thus, it could not be said, without recording of evidence that the transfer by a decree, is not of permanent nature. Similarly section 30 of the Punjab pre-emption Act, 1991 deals with the period of limitation and sale effected through a registered sale-deed or a mutation, are covered by its sub-clauses (a) and (b) whereas remaining transfers are covered by its clause (d).
Dispute regarding transfer of property through a decree, as in this case, is covered by clause (d) of section 30 of the Act, ibid. Even otherwise provisions have no relevance for the determination of pre-emptibility of the transaction. Be that as it may, the suit of the petitioner was not barred by any law and it did disclose a cause of action, hence, rejection of its plaint, was not warranted.
10. For what has been discussed above, it is obvious that the judgments/orders and decrees, dated 28-5-2003 and 3-7-2003 passed, by the learned Civil Judge and the learned Additional District Judge, Jhang respectively are tainted with illegalities and irregularities, as envisaged by section 115, C.P.C. And thus, are not maintainable.. This civil revision is accordingly accepted and the above- referred judgments and decrees are set aside and application under Order VII, rule 11, C.P.C. Is dismissed, with the result that the suit of the petitioner will be deemed to be pending and shall be decided on merits, in accordance with law, including the issue, of pre-emptibility of the decree, without being influenced by any observation of this Court which are only meant for decision of application under Order VII, rule 11, C.P.C. Parties are directed to appear before the trial Court on 17- 3-2004. There will be no order as to costs.