2022 PLP 775 (MLD)

MIRZA VIQAS RAUF, J.

The petitioner herein is a plaintiff in a suit for possession through pre-emption, permanent and mandatory injunction which was instituted in order to pre-empt the land measuring 12 Marla 07 Sarsahi situated in the revenue estate of Lakhan Rural Tehsil and District Rawalpindi purchased by respondent No.1 (hereinafter referred as "respondent") from Muhammad Gulraiz Mughal through registered sale deed bearing No.4608 dated 22nd February, 2020. As per averments of the plaint, the petitioner attained the knowledge about the sale on 16th March, 2020 whereafter he performed Talb-i-Muwathibat. It is petitioner's own case that he sent notice of Talb-i-Ishhad on 18th May, 2020 to the "respondent". Suit was resisted by the "respondent", who submitted his written statement. This followed an application under Order VII, Rule 11 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "C.P.C.") seeking rejection of plaint on multiple grounds wherein non-sending of notice of Talb-i-lshhad within prescribed period was also made one of the grounds. The application was resisted by the petitioner and initially vide order dated 19th May, 2021 learned Civil Judge proceeded to dismiss the same. Feeling aggrieved the "respondent" filed a revision petition before the learned Additional District Judge, Rawalpindi, who allowed the same and rejected the plaint by way of order dated 05th July, 2021, which is now impugned in the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

2. Learned counsel for the petitioner contended that by virtue of the Civil Procedure Code (Amendment of First Schedule) 2018 no separate application under Order VII, Rule 11 of "C.P.C." is permissible. He added that application was initially rightly rejected and the learned revisional court has erred in law, while allowing the revision petition. Learned counsel emphasized that petitioner has been knocked out on the basis of technicalities whereas law favours the adjudication on merits.

3. Heard. Record perused.

4. Suit was instituted by the petitioner in order to pre-empt the sale in favour of "respondent" which was effected through a registered sale deed on 22nd February, 2020. Section 13 of the Punjab Pre-emption Act, 1991 (hereinafter referred as "Act, 1991") ordains that right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely (a) Talb-i-Muwathibat, (b) Talb-i-Ishhad and (c) Talb-i-Khusumat. Talb-i-Muwathibat means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Talb-i-Ishhad means demand by establishing evidence whereas Talb-i-Khusumat is a demand by filing a suit. It is thus incumbent upon the pre-emptor to make Talb-i-Muwathibat immediately on gaining the knowledge of the sale. Subsection (3) of Section 13 of "Act, 1991" postulates that where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption.

5. It is thus manifestly clear from the above that Talb-i-Ishhad is to be made by the pre-emptor as quickly as possible but not later than two weeks from the date of knowledge in the manner provided under subsection (3). When plaint is examined in this context it clearly evinces therefrom that petitioner though purportedly gained knowledge about the sale on 16th March, 2020 but he sent notice of Talb-i-Ishhad to "respondent" on 18th May, 2020, which is clearly beyond the prescribed period.

6. Order VII, Rule 11 of "C.P.C." mandates that a plaint shall be rejected in the following cases:- "

11. Rejection of plaint.

The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law." (Underlining supplied for emphasizes) Bare perusal of the above referred provision of law leaves no room except to hold that where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected. From the plain language of the above referred provision of law it becomes clear and unequivocal that it is the bounden duty of the court to reject the plaint in terms of clauses mentioned therein. The purpose and scope of Rule 11 clearly seems to be to nip the evil in the bud.

7. The question arises as to whether for invoking the provisions of Order VII, Rule 11 of "C.P.C." an application to this effect is necessary from defendant, spontaneous answer is loud "No". It is the primary and bounden duty of a court to apply the law and to exercise powers vested by the law instead of abdicating the same for avoiding misuse and abuse of process of law. In the case of Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCMR 741), while outlining the scope of Order VII, Rule 11 of "C.P.C." the Honourable Supreme Court held as under :- "

10. It is pertinent to mention here that in view of the Order VII, Rule 11, C.P.C. it is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that the Court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII, C.P.C. Undoubtedly in the case in hand, the respondent is seeking the order of the rejection of the plaint by invoking the aforesaid provisions of law. It is a settled law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. This Court does not, normally, exercise discretion in view of the conduct of the petitioner. The detailed facts have already mentioned hereinabove that petitioner had filed suit for declaration with permanent injunction against the respondent. During the pendency of the suit petitioner filed constitutional petition on the same subject-matter and cause of action. His suit was dismissed as withdrawn during the pendency of his constitutional petition. The constitutional petition was dismissed. Thereafter the petitioner filed second suit out of which the present controversy arises. The conduct of the petitioner is such that we are not inclined to exercise discretion in his favour as law laid down by this Court in various pronouncements. See Khawaja Muhammad Shaun case PLD 1988 Lah. 725 and Haji Muhammad Saifullah Khan's case PLD 1989 SC 166." The above view was even adopted by learned Sindh High Court in the case of Ardeshir R. Cowasjee and others v. C.D.G.K. and others (2008 CLC 1166).

8. There remains thus no cavil that for the rejection of plaint in terms of Order VII, Rule 11 of "C.P.C. no intervention of the parties is even required and the court car exercise such powers suo motu.

9. Adverting to the contention of learned counsel for the petitioner that by virtue of the Civil Procedure Code (Amendment of First Schedule) 2018 no separate application is permissible, suffice to observe that powers of the court in terms of Rule 11 of Order VII "C.P.C." cannot be abridged or curtailed as rejection of plaint can either be made on the application of the party or suo motu by the court. Apparently the purpose of the legislature in introducing Rule 11-A in Order VII of "C.P.C." is to discourage the parties to the lis from moving belated applications, seeking rejection of plaint, to prolong the proceedings.

10. The exercise of constitutional jurisdiction in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is discretionary which can only be invoked in extraordinary and exceptional circumstances. The petitioner has badly failed to point out any illegality or material irregularity in the impugned order, warranting interference by this Court in exercise of constitutional jurisdiction. This Court, while invoking its constitutional jurisdiction always exercises restraint in interfering with the judgment or order passed in exercise of revisional jurisdiction unless some perversity or patent illegality is floating on the surface of record. The constitutional jurisdiction can only be exercised in such an eventuality if the impugned judgment or order suffers with certain legal infirmities or patent illegalities, resulting into failure of justice. Reference in this regard can be made to Muhammad Husain Munir and others v. Sikandar and others (PLD 1974 Supreme Court 139) and Ghulam Mustafa and another v. District Judge, Jhang and 3 others (2013 MLD 1065).

11. For the foregoing reasons the instant petition being devoid of any merits is dismissed in limine. ZH/A-106/L Petition dismissed.