1985 PLP 2883 (CLC)

This appeal arises out of the order dated 31-3-1983 by which the plaint was rejected under Order VII, rule 11, C.P.C. Office has raised objection that the appeal was time-barred, however I find that the decree was prepared only on 6-6-1983 and the application for copies had been filed on 2-5-1983 while the copy was supplied on 25-7-1983 and the appeal was filed on 25-8-1983. Since the decree itself was prepared on 6-6-1983 while the application for copy has been filed on 2-5-1983 and since the obtaining of decree was essential for filing the decree, therefore, the whole time upto 6-6-1983 from 31-3-1983 shall have to be excepted. Consequently this appeal is found to be within time of 90 days as provided under Article 156 of Limitation Act. Mr.Faiz Muhammad Soomro, Advocate contended that the plaint could be rejected only on the basis of the averments in the plaint, but the Trial Court has gone beyond that. I find that the plaint has been rejected on the ground that the suit for declaration of the plaintiff being based upon sale-deed in his favour executed by defendant on 11-11-1974 was barred by paragraph 10 of scheme prepared under M.L.R. 89/91. And it was also rejected on the ground that economic holding of 64 Acres had not been left with the vendor as he had executed a sale-deed in respect of 55.16 Acres of land out of the total holding of 90.3 Acres. The submission of the learned counsel that the trial Court has presumed that there were only 90.3 Acres with the vendor without any statement too that effect in the plaint appears to be correct and that, therefore, on this ground the plaint could not have been rejected because the sale-deed was yet to be shown to be void on account of the left over holding with the vendor being less than 64 Acres. Finding in that respect could not be reached without the written statement and evidence having come on record. However, in respect of the point of rejection of the plaint on the other point I do find that the view appears to be apparently supported by a Karachi Authority namely PLD 1969 Kar. 324, "that if a contract of sale was entered into by a vendee without the previous permission of the collector which is mandatory under statute then the same was void, appears to be applicable to this case where the respondent had executed sale-deed in favour of the plaintiff/appellant in respect of that and which he had surrendered to the Government and had re-purchased the same and the instalment of re-purchase were still to be _paid by him. The embargo placed under paragraph 10 of the scheme of the M.L.R. 89/91, which prohibited sale of such land without obtaining the previous sanction of the collector was squarely applicable in this ease and, therefore, the view that the deed of sale, dated 11-11-1970 in favour of the appellant by respondent No.1 was hit by para. 10, is correct. But this really did not conclude the matter inasmuch as there was still another relief which could be granted by the Court and which was not barred under any provision of law namely, that the plaintiff had prayed for any other relief which the Court deemed fit. In the instant case the relief of the return of the purchase money or advance paid by the appellant to the respondent would have been a just and proper relief to grant in case the Court came to the conclusion that the contract of sale or the sale was void and in such a case the parties had to be relegated to the position in which they were before B the alleged contract or deed of sale. Such being the position I am of the view that the entire plaint could not be rejected by the learned Trial Judge and he had full jurisdiction to grant the relief in respect of the refund of the money advanced by the appellant, if any, subject to proof to be tendered by the appellant. Since the plaint could not be rejected in part, therefore, although agreeing with the view expressed in P L D 1969 Kar. 324, I have to set aside the order of rejection of plaint because the relief of the refund of the advance payment made by the appellant to the respondent could have been decreed by the trial Court if it was duly proved. Consequently this appeal is allowed. I remand the suit to the trial Court for decision. H.B.T. Appeal allowed.