2011 YLR 1145 (PLP)

NASIR SAEED SHEIKH, J:

This civil revision is directed against the judgment and decree dated 21-3-2002 passed by the learned Additional District Judge, Pindi Bhattian, District Hafizabad whereby an appeal against the judgment and decree dated 12-9-2001 passed by the learned Civil Judge, Pindi Bhattian dismissing the suit of the petitioner by applying the provisions of Order XVII, Rule 3 of C.P.C., was dismissed.

2. Briefly stating the facts of the ease are that the petitioner instituted a suit for possession through exercise of right of pre-emption in respect of subject land on 15-5-1995 before the learned Civil Judge Pindi Bhattian. The suit was originally instituted at Hafizabad but subsequently Sub-Divisional courts were created in Pindi Bhattian, resultantly the suit was transferred there.

3. This suit was contested by the respondents and the Trial Court framed the following issues:-- ISSUES (1) Whether plaintiff has superior right of pre-emption? OPP (2) Whether plaintiff made Talbs under law? OPP (3) Whether ostensible sale price Rs.46,000 was fixed in good faith and actually paid? OPD (4) Whether plaintiff has no cause of action and locus standi to file this suit? OPD (5) Whether plaintiff is estopped to sue? OPD (6) Whether suit is under valued? OPD (7) Whether suit is liable to be rejected under Order VII Rule 11, C.P.C.? OPD (8) Relief.

4. The Trial Court by applying provisions of Order XVII, Rule 3 of C.P.C. dismissed the suit of the petitioner vide judgment and decree dated 12-9-2001 after closing his right to produce the evidence. This judgment was assailed through an appeal before the learned Additional District Judge on 13-10-2001 which appeal also met the same fate and the judgment and decree of the learned Trial Court was upheld by the ADJ.

4. This Civil Revision is directed against the judgments and decrees of the two courts below.

5. Nobody has appeared on behalf of the respondents, therefore they are proceeded ex parte.

6. During the course of arguments the attention of the learned counsel for the petitioner was drawn to paragraph No.4 of the plaint wherein no mention of time, date and place for making Talab-i-Muwathibat has been mentioned by the plaintiff. The judgments of the Honourable Supreme Court of Pakistan reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404) and Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) particularly deal with this situation and lay down the law that where the plaintiff does not mention time, date and place of knowledge of sale and of making Talab-i-Muwathibat in the plaint, the suit of the plaintiff is not proceedable and is liable to be dismissed. The learned counsel for the petitioner has argued that although the consistent law as reported above is the same but the plaintiff can move for the amendment of the plaint in order to meet the requirements of law. I am afraid that this prayer is not permissible in view of the law referred to above. Without dilating upon the correctness or otherwise of the application of the provisions of Order XVII, Rule 3 of C.P.C., by the two courts below, I am of the view that the plaint does not fulfill the requirements of law as laid down in the reported judgments of Honourable Supreme Court of Pakistan noted above and the omission noted above is fatal to the maintainability of the suit of the petitioner. In view of the above this civil revision cannot be accepted and hence is dismissed within no orders as to costs. M.U.Y./A-219/L Revision petition.