P L D 1966 (W (PLP)

"Whether the plaint discloses a cause of action."

3. After hearing the learned counsel for the parties, the trial Court held that as the property in dispute admittedly is situate in a town section 7 of the Punjab Pre‑emption Act, 1913 was applicable in which it was provided that a right of pre emption shall exist in respect of urban immovable property in any town or sub‑division of a town when a custom is proved to have been in existence in such town or sub‑division at the time of the commencement of the said Act and not otherwise. The learned Court upheld the objection of the defendant vendees on the ground that in order to prove This fact a pre‑emptor must allege in the plaint that the custom in the town concerned existed and that he had a right to pre‑empt the property involved in the suit. By judgment, dated 31st October 1955, the learned trial Court rejected the plaint in all the three suits on the ground that the appellant‑plaintiff had not disclosed a cause of action in the suit.

4. The appellant challenged this order in Civil Appeals Nos. 68, 69 and 70 of 1955 in the Court of Senior Civil Judge, Gujrat. The learned Senior Civil Judge, Gujrat in exercise of his enhanced civil appellate powers by a common judgment, dated the 14th February 1956, upheld the view of the trial Court and dismissed the appeals on the following observation:‑ "The plaint must necessarily contain the allegations which must be proved before a decree could be given As the plaints stand the pre‑emptor would not be entitled to any relief whatever fixed if all the allegations made by her are proved and the obvious reason is the absence of the necessary allegation of the existence of custom of pre‑emption. I, therefore, hold that the plaints do not disclose cause of action and was rightly rejected by the trial Court." The appellants have challenged this decision in these second appeals.

5. The appeals are undefended. Notices were issued in all be three appeals to the respondents. But they have refused to accept service, and proceedings against them are, therefore, ex parte. In support of the appeal Malik Muhammad Nadir, the learned counsel for the appellant, has contended that the learned Courts below have taken a too technical view of the question under consideration. The learned counsel contended that there is no provision in the Punjab Pre‑emption Act which requires a party to allege in the plaint that the custom of pre‑emption existed in a particular town. According to the learned counsel under section 7 of the Punjab Pre‑emption Act a plaintiff is only required to prove the existence of custom of pre‑emption if the property sought to be pre‑empted is situated in a town. In support of his contention that no such allegation is necessary the learned counsel placed reliance on a decision of the Lahore High Court in Sat Narain v. Pheroze Behramji and another (A I R 1936 Lah. 35). In that case a Division Bench of the Lahore High Court held that where the plaintiff states in the plaint in a pre emption suit that he has a right of pre‑emption, but does not specify the grounds en which he bases his claim, it cannot be said that the plaint does not disclose a cause of action. Tekchand, J., while dealing with this aspect of the question observed as under: "After examining the record and hearing counsel I have no doubt that the decision of the lower Court that the plaint did not disclose a cause of action, is incorrect. As stated already the plaintiff had stated in the plaint in general terms that he had a right of pre‑emption, and though he did not specify the grounds on which he based his claim, it cannot be said that the plaintiff did not disclose a cause of action. All that can be said is that the plaint, as originally presented, was not sufficiently specific, but the matter was put beyond doubt in the application, when the plaintiff clearly stated that he claimed to pre‑empt the property by reason ‑of his being a co‑sharer in the property sold, and also as the owner of contiguous property. These particulars were supplied at the earliest possible opportunity and before the issues were framed. The pleadings taken as a whole made the plaintiff's position quite clear and it cannot be said that they did not disclose the plaintiff's alleged cause of action with sufficient clearness of precision." The learned counsel further relied on a decision of a Full Bench of the Bombay High Court in Dashrathlal Chhaganlal and another v. Bai Dhondubai (A I R 1941 Bom. 262). In that case Beaumont, C. J. at page 264 of the report observed as under:‑ "They say, first of all, that no custom is alleged, or proved, in the plaint. The answer to that, made in both lower Courts, is that this custom has been judicially recognized as applying to Ahmedabad; and, no doubt, it is the law that if a custom is known, and has been judicially recognised, it is not necessary to allege or prove it; it has become part of the local law of which the Court takes judicial notice." Thus it will be noticed that both in the Lahore High Court and in the Bombay High Court the view was taken that it is not necessary to allege in the plaint that a custom of pre‑emption) was recognised in a particular town. All that is necessary is that the plaintiff should allege that he has a right of pre‑emption. The grounds on which the right of per‑emption is claimed need not be specifically stated in the plaint. Considering the case in this light it is perfectly clear to me that the learned Courts below have taken a too technical view of the plea raised before them. It is clearly stated in the plaint by the appellant in all the three suits that as against the vendees she had a superior right of pre‑emption as the house owned by her is adjacent to the house sought to be pre‑empted. The mere fact that the Plaintiff appellant did not allege in the plaint that the custom of pre emption is recognised in the town of Jalalpur Jattan, Gujrat District should not have resulted in the rejection of the plaint on the ground that no cause of action was disclosed. Under the Civil Procedure Code, Order II, rule 1, C. P. C. only requires that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Simi larly, Order VI, rule 2 requires that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim of defence as the case may be. . Thus, according to the Civil Procedure Code a party is only expected to state only facts and not law' and it is for the Courts itself to find out and examine all plea's of laws that may apply to the facts. In the present case, therefore, it was open to the defendants to deny the custom of pre‑emption in the town in question and thereupon for the trial Court to raise a plea whether the right of pre‑emption was recognised in the town in question under section 7 of the Pre‑emption Act. I have no doubt in my mind that the absence of allegation in respect of the alleged custom cannot mean that the plaint does not disclose a cause of action. Both the Courts below have, therefore, fallen into an error of law and have on erroneous grounds rejected the plaint of the plaintiff‑appellants in the three suits filed by them in the Court of Sub‑Judge, Gujrat.

6. Malik Muhammad Nadir, the learned counsel by abundant caution has also applied for the amendment of the plaint so as to incorporate a specific allegation on this point. The learned counsel has also filed the proposed amended plaint. In the interest of justice, I would allow the amendment and direct the trial Court to accept the amended plaint filed by the plaintiffs in the three suits after the case is received on remand by it.

7. After carefully considering the contention of the appellant, I would accept the appeal and remand back all the suits to the Court concerned for decision on merits after notice to the defendants within three months of the passing of this order. Since the appeal is uncontested the parties are left to bear their own costs. K. B. A. Appeal accepted.