2023 PLP 2109 (MLD)

MASUD ABID NAQVI, J.

Concise facts of this civil revision are that the plaintiffs/respondents Nos.2 to 9 filed a suit for Specific Performance of an Agreement to Sell against the private defendants/ petitioners and Province of the Punjab/defendant No.1 with the averments that suit land commonly known as lot No. 446 was not only allotted to Din Mohammad son of Moula Baksh but the possession of the same was also delivered by the Thal Development Authority to him. With the permission of Collector, said Din Mohammad transferred the suit land to Hadayat Ullah (deceased), Anayat Ullah (deceased), Rehmat Ullah (deceased) and Bheir Din (deceased) in 1960 and private defendants/petitioners are their legal heirs. After receiving an amount of Rs.6500 as sale consideration, the predecessors in interest of private defendants/petitioners namely Hadayat Ullah, Anayat Ullah, Rehmat Ullah and Bheir Din executed an agreement to sell dated 19.12.1963 and affidavit in favour of the predecessor in interest of the plaintiffs/ respondents Nos.2 to 9 namely Sher Mohammad (deceased) with the understanding that Sher Mohammad will pay the amount(s) of remaining installments of suit land and will take further steps for the fulfillment of other conditions for the completion of allotment process and for grant of proprietary rights and possession of the suit land was also delivered. The plaintiffs/respondents Nos.2 to 9 paid the amount(s) of remaining installments and no amount of any installment or otherwise is payable by the plaintiffs/respondents Nos.2 to 9, hence instant suit for Specific Performance of Agreement to Sell. Province of the Punjab/defendant No.1/respondent No.1 and private defendants/petitioners filed contesting written statement(s) by raising factual as well as legal objections.

2. Out of divergent pleadings of the parties, issues were framed by the learned Trial Court including the issue of rejection of plaint under Order VII, Rule 11, C.P.C. and parties led their respective oral as well as documentary evidence. After hearing the arguments advanced by both the parties, the learned Trial Court vide judgment and decree dated 20.07.2009 decreed the suit. Feeling aggrieved, the private defendants/petitioners preferred an appeal and the learned Additional District Judge dismissed the appeal vide judgment and decree dated 22.07.2011. Being dissatisfied, the private defendants/petitioners have filed the instant civil revision and challenged the validity of the impugned judgments and decrees passed by the learned courts below.

3. I have heard the arguments of learned counsel for the parties and minutely gone through the record as well as the impugned judgments and decrees.

4. Perusal of record reveals that the plaintiffs/respondents Nos.2 to 9 filed a suit for Specific Performance of an Agreement to sell on the same subject matter with same relief in 1991 against the predecessors in interest of private defendants/petitioners namely Hadayat Ullah, Anayat Ullah, Rehmat Ullah and Bheir Din which was dismissed by the learned trial court vide judgment and decree dated 28.11.1995 with the findings:- " .defendants have not earned ownership yet ..I am of considered opinion that time is not ripe for the filing of the suit for specific performance of agreement to sell .". The appeal against the said judgment and decree preferred by the plaintiffs/respondents Nos.2 to 9 was also dismissed by the learned appellate court vide judgment and decree dated 08.12.1996. The instant suit is the second suit, filed by plaintiffs/respondents Nos. 2 to 9 against the private defendants/ petitioners and Province of the Punjab/defendant No.1 on the same subject matter with same relief. Apart from raising other questions of facts and law in written statement, Province of the Punjab/defendant No.1 mainly pleaded that propriety rights were/are not granted to private defendants/petitioners and they cannot sell the suit land to the plaintiffs/respondents Nos.2 to 9 and even certain amount(s) were/are due and are payable by the private defendants/petitioners and plaint is liable to be rejected under Order VII, Rule 11, C.P.C. The private defendants/petitioners also confirmed the ownership of the Province of the Punjab/defendant No.1 on the suit land with the acknowledgement that certain amount(s) were/are due and payable by them to Province of the Punjab/defendant No.1.

5. The predecessors in interest of private defendants/petitioners namely Hadayat Ullah, Anayat Ullah, Rehmat Ullah and Bheir Din allegedly executed an agreement to sell/Iqrarnama/Ex.P-5 dated 19.12.1963 and Affidavit/Ex.P-4 in favour of the predecessor in interest of the plaintiffs/respondents Nos.2 to 9 namely Sher Mohammad but by simply reading the entire record as well as pleadings of the contesting parties and the disputed documents, there remains no doubt rather admittedly, the proprietary rights have not been granted/delivered to private defendants/petitioners by the Province of the Punjab/defendant No.1 and the private defendants/petitioners are not the owners of the disputed land which is still owned by the Province of the Punjab. Hence, before granting proprietary rights to the private defendants/petitioners, Province of the Punjab retains its powers to deny the proprietary rights to the private defendants/petitioners, in case of any violation of allotment policy etc. The learned Courts below while passing the impugned judgments and decrees failed to appreciate this fact that after the dismissal of plaintiffs/respondents Nos.2 to 9's first suit for Specific Performance of same Agreement to Sell with the same subject matter and same relief against the private defendants/petitioners and Province of the Punjab and thereafter dismissal of plaintiffs/respondents Nos.2 to 9's appeal, no new cause of action arose in favour of plaintiffs/respondents Nos.2 to 9 to file instant second suit. Being successor in interest of Sher Mohammad deceased, plaintiffs/respondents Nos.2 to 9 again filed second Suit for Specific Performance before arising cause of action as the alleged agreement to sell cannot be enforced before the grant of proprietary rights by the Province of the Punjab to the private defendants/petitioners. In this regard, I am fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in case of "Commissioner Multan Division, Multan and others v. Muhammad Hussain and others" (2015 SCMR 58), the operative part is reproduced hereunder: - " .there is a distinction between the disputes pertaining to claim for proprietary rights by an allottee or his successors against the State from disputes between allottees and their vendees of State land under transactions concluded prior to grant of proprietary rights. Liberal treatment is accorded by the law to an agreement to sell, concluded by an allottee with a vendee in anticipation of securing proprietary rights of State land. As held in Muhammad Sadiq v. Muhammad Ramzan (2002 SCMR 1821), an agreement or deed of sale of land leased by the State, being contractual is treated as valid inter parties but the same cannot be enforced until proprietary rights are conferred by the State ."

6. It is relevant to discuss here that Order VII, Rule 11, C.P.C. cannot be properly construed in isolation without understanding the theory of law with reference to its complementary provision, namely, Order VII, Rule 13, C.P.C. which is reproduced below:-- "

13. Where rejection of plaint does not preclude presentation of fresh plaint.

The rejection of the plaint on any of the grounds hereinabove mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action." Rule 13 ibid clarifies the consequence of the rejection of the plaint by keeping the right of the plaintiff alive to present a fresh plaint even if based on "the same cause of action" notwithstanding the rejection of the plaint, this is a distinctly unusual provision which also marks a clear distinction from the provisions of section 11, C.P.C. as same not merely imposes a legal bar on an unsuccessful plaintiff but actually takes away the jurisdiction of the court to try any suit or issue in which the matter directly or substantially in issue has also been in issue in a former suit between the same parties litigating under the same title in a court of competent jurisdiction which has been "heard and finally decided", a well-known principle of res judicata which is one of the foundational principles of our procedural law. Concept of rejection of a plaint under Order VII, Rule 11 read with Rule 13, C.P.C. is clearly distinct from that of a suit which is decided and disposed of in the normal course by a court of competent jurisdiction after recording evidence.

7. Both the learned Courts below have failed to appreciate these material facts, provisions of law and the dictum laid down by the Honourable Superior Courts. Hence, the findings of both the learned Courts below are set aside by accepting this Civil Revision. Resultantly, the plaint filed by the plaintiffs/respondents Nos.2 to 9 is hereby rejected under Order VII, Rule 11 read with Rule 13 of C.P.C. MQ/H-28/L Revision Petition allowed.