1998 PLP 1927 (CLC)

Shaukat Hayat Khakviani for Petitioner. Saleem Nawaz Awan for Respondents. Date of hearing: l8thMay, 1998. Niaz Muhammad petitioner/plaintiff filed suit for pre‑emption against Mst. Naziran on 26‑11‑1995. Subsequently an amended plaint on 24‑1‑11996 was tiled when the vendee took up the plea that the property was further transferred to Haji Karim Bakhsh. The latter was impleaded through amended plaint.

2. The vendees filed an application before the trial Court that as the petitioner/pre‑emptor had failed to specify in plaint the date, time and place of "Talb‑i‑Muwathibat" and also had failed to mention the names of the witnesses of "Talb‑i‑Muwathibat", his plaint required to be rejected under Order 7, Rule 1 l of the C.P.C. Learned Civil Judge‑I, Dera Ismail Khan vide his order, dated 18‑9‑1996, declined the rejection of plaint but the same was allowed by the learned Additional District Judge in appeal vide order, dated 3‑7‑1997 and Hence this revision.

3. No doubt, this Court from time to time has held that the aforesaid requirements concerning "Talb‑i‑Muwathibat" are necessary to be mentioned in the plaint and no doubt such view of this Court stands confirmed by the Honourable Supreme Court in PLD 1998 Supreme Court 121‑122 yet the fact remains that "Talb‑i‑Muwathibat" is a question of fact and remains always to be finally determined at trial. If such question of fact is not desirably mentioned in the plaint, the plaintiff is most likely to eventually bear the brunt thereof, at the time of trial.

4. Anything which requires to be determined at trial through production of evidence is a question of fact which does not have direct bearing on the factum of cause of action. If there is any weakness in the plaint qua the questions of fact, a plaintiff is likely to face serious difficulties at the time of production of evidence, at the time when he himself appears in the witness‑box or at the time when he examines his witnesses. All such problems he is likely to confront at the trial. He might succeed or he might not, is a matter to be determined by the trial Court and only after when the evidence is recorded. His suit might, in the circumstances be dismissed but his plaint cannot be rejected under Order 7, Rule 11, C.P.C. The aforesaid provisions are attracted only when the plaintiff lacks a cause of action. When such cause of action is dependent upon a proof to be brought subsequently at trial, no plaint can be rejected before the recording of evidence. What, in the instant case is likely to happen, can be the non‑proof of "Talb‑i‑Muwathibat" on the basis of which his suit would be likely to be dismissed but the rejection of plaint is unwarranted, for, he does have a cause of action which accrued to him on the basis of the impugned transaction and on the basis of his superior rights, as he alleged.

5. Learned counsel for the respondents, having not resisted to the above view, has vehemently contended that the amended plaint filed by the pre‑emptor is not in accordance with the order of amendment passed by the Court and that, through such amendment, he has factually adverted to filling in certain serious lacuna that had occurred in the original plaint. Though such objection is not subject‑matter of the instant revision yet, if genuine, the objection can be taken up before the trial Court at the time of final arguments and the same can be taken notice of.

6. Consequently, the learned Additional District Judge has fallen into an illegality by rejecting a plaint on the basis of questions of fact which required otherwise to be determined at trial. The revision petition is accepted, the impugned order, dated 3‑7‑1997 of the learned Additional District Judge is set aside and the plaint is restored to its original position. The trial Court is directed to proceed with the trial in accordance with law. Parties are directed to appear before the trial Court on 28‑5‑1998. H.B.T./147/P Revision accepted