2020 PLP 17 (CLCN)

MUHAMMAD NASIR MAHFOOZ, J.

This writ petition is directed against the orders dated 19.11.2016 passed by the learned District Judge, Bannu, whereby the revision petition of present petition against the order dated 17.9.2016 passed by the learned Civil Judge-III, Bannu, was dismissed.

2. On 04.11.2015, the present respondent/plaintiff filed a suit for pre-emption against the petitioner/defendant under Khyber Pakhtunkhwa Pre-emption Act, 1987. Apparently, no written sale appears to be pre-empted.

3. Instead of filing written statement, the present petitioner filed an application for rejection of plaint under Order VII, Rule-11, C.P.C. on the ground that the suit is pre-mature as the sale is not complete. The said application was dismissed by the learned trial court as well as by the learned revisional court, hence, instant petition.

4. I have heard arguments of learned counsel for the parties and perused the record.

5. Learned counsel for the petitioner submitted that he had filed suit No. 80/1 on 07.5.2014 for specific performance of an agreement dated 29.7.2011 against the legal heirs of his brother Shaista Khan, wherein compromise was effected between the parties. As per contents of the agreement Rs.5,00,000/- (five lacs) were received by the legal heirs of Shaista Khan as earnest money @ Rs. 3,10,000/-. Per marla for an area of eighteen (18) marlas. Rest of the out-standing amount was to be paid at the time of attestation of mutation. On the basis of said agreement, civil suit No. 80/1 was withdrawn by the petitioner on 17.10.2015 by recording this statement and marking the agreement as Ex.PK in court. The legal heirs of Shaista Khan which included two minor daughters were recorded through their mother as guardian ad-litem duly thumb impressed by the other daughters and his wife. Hence, he submitted that since all sale amount is not paid the sale is not complete, therefore, the suit is not maintainable and relied on judgment reported as 2010 SCMR 1770 and PLD 1986 Lah. 399.

6. On the other hand, learned counsel for the respondent rebutted the arguments and submitted that under section 2(d) of the ibid Act of 1987 when possession is delivered, the sale is complete, so the suit is maintainable.

7. In order to appreciate the contentions of the learned counsel for the parties relevant Paragraph from the judgment reported as 2010 SCMR 1770 titled Abdul Nasir v. Haji Said Akbar is reproduced below:- "

3. The above observations are also reinforced by the provisions of section 5 of the Act ibid which expressly provides that the right of pre-emption "shall arise in case of sale". This provision, therefore, necessarily implies that if there is no sale, i.e, conveyance of title from vendor to vendee, then the right of pre-emption does not arise.

4. In the foregoing circumstances, we are not left in any doubt that the parties in the case as well as the learned courts below have fallen in error by treating the above referred agreement as a conveyance rather than an agreement to sell which envisages a conveyance at a future date, after payment of the balance consideration, which date has not as yet occurred."

8. Deriving wisdom from the afore-quoted paragraph it could be safely held that till attestation of mutation in favour of the present petitioner and the payment of the said out-standing sale amount, the nature of agreement is not that of a conveyance but an agreement to sell, because the sale is contingent with the performance of some act for a future date. There is nothing on record to suggest that the said out-standing amount has been paid, so as to constitute the subject agreement as out and out sale.

9. In view of the above, the suit for pre-emption filed by present respondent is pre-mature and in case it is allowed to proceed and is finally decreed or dismissed, the third party interest, i.e, legal heirs of Shaista Khan would be jeopardized without being in knowledge of the instant proceedings. Amongst the essential ingredients for allowing application under Order VII, Rule 11, C.P.C., also includes that the plaint must disclose a cause of action and the suit must be barred by any law. Since the agreement is in fact an agreement to sell, so respondent/plaintiff has got no cause of action and his plaint is liable to be rejected under Order VII, Rule 11, C.P.C. A mere contemplation or possibility that a right may infringed or a right to sue has arisen without any legitimate basis for that right would not be sufficient to constitute a cause of action. Sale no doubt transfers the rights affiliated with ownership that is a bundle of rights. It accrues a right to include, exclude and transfer the property in a manner one wants.

10. It is also true that for construing a cause of action in a pre-emption suit, there must be a sale to confer any rights to perform "Talbs" as enshrined in section 13 of ibid Act. A bare perusal of the plaint must disclose a cause of action to create an enforceable right and in its absence the plaint would be held not disclosing a cause of action.

11. As a result the instant petition is allowed, the impugned orders of the learned courts below are set aside and the application of present petitioner under Order VII, Rule 11, C.P.C. stands allowed and the plaint shall stands rejected. However, respondent/plaintiff may enforce his right, if any, subject to law when the sale is complete. Here the rights of the vendors legal heirs of brother of petitioner could be catered. As in welfare State rights of citizens are to be preserved and protected. Copy of this order be sent to the said legal heirs so that they may execute the order in case the out-standing sale amount is still not paid. ZC/248/P Petition allowe