2003 PLP 2722 (YLR)

O. VII, R. 11

Rejection of plaint-- Scope

Power to reject the plaint under O. VII. R. 11, C. P. C. must be exercised only if the court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief-- Provisions of O. VII, R.11, C. P. C. are not attracted where the suit involves a factual investigation for determining the real issue in controversy. Muhammad Fazal's case 1983 CLC 1165 ref. Nemo for Appellant. Sardar Attaullah Abbasi for Respondents. This appeal is directed against the judgment and decree of the learned Additional District Judge, Kahuta Camp, Dhirkot whereby judgment and decree of Civil Judge First Class, Dhirkot passed on 25-7-2001 has been maintained. The precise facts giving rise to this appeal are that Ajab Khan, appellant herein, brought a suit for declaration and pre-emption in the Court of Civil Judge, Dhirkot on 15-12-2000, in respect of land, bearing Survey No.1535, min 5 Kanals, 17 Marlas, situated in village Hell Surang. The said land was alienated by respondent No.2 in favour of respondent No.1 through a lease executed on 17-7-2000. It .was alleged that the aforesaid land was sold to respondent No. 1 in guise of a lease and after declaring so the petitioner is entitled to a decree of pre emption on the basis of preferential right of purchase. The respondents were directed to file written statement. Instead of filing the written statement, they moved an application under rule l 1 of Order 7 of the Code of Civil Procedure for rejection of the plaint on 16-4-2001. This application was objected to by the present appellant by filing objections on 12-5-2001. The learned Civil Judge after hearing the parties rejected the plaint under Rule 11 of Order 7 of C.P.C on the ground that no sale has taken place, therefore, the suit is not maintainable. In this regard the learned Judge placed reliance on 1989 CLC 1372. An appeal was taken to the learned District Judge, Kahouta Camp, Dhirkot on 21-9-2001. The learned Additional District Judge also concurred with the order of the Civil Judge and dismissed the appeal, hence, this second appeal. No one is present on behalf of the appellant. Sardar Muhammad Yasin Khan, Advocate, who has filed this appeal could not attend the Court due to his serious ailment. On 30-5-2003, Sardar Abdul Ghaffar Khan, Advocate, filed his power of attorney and the case was adjourned for arguments to 16-6-2003. But neither the appellant nor his learned Advocate was present, therefore, instead of dismissing the appeal to default I am persuaded to decide the same on merits, with the assistance of the learned Advocate representing the respondents. As stated above that the suit was filed on the ground of preferential right of prior purchase claiming therein that lease which has been executed on July 17,2000, for a period of 125 years is in effect a sale and after declaring so the petitioner is entitled to a decree. Both the subordinate Courts in exercise of powers conferred on them under rule 11 of Order 7 rejected the plaint and thus non-suited the plaintiff/ appellant. In my view the approach of both the subordinate Courts is faulty and is against the scope of Rule 11 of Order 7 of the C.P.C. under Chapter 2, section 4 of the Right of Prior Purchase Act. 1993 (B.K.), the scope of the right of prior purchase has been postulated. Section 4 is reproduced as under:-- "

4. Right of prior purchase application of.

The right of prim purchase shall mean the right of a person to acquire agricultural land or village immovable property in preference to other persons and it arises in respect of such land only in case of sales, or of foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale." A perusal of above reveals that a suit can be filed even where a regular sale has not taken place and the parties have alienated a land through any other mode for defeating the right of prior purchase. The Court can come to this conclusion only after providing the parties opportunity of leading the evidence in' support of their respective claim. In such cases, the conduct and intention of the parties are most relevant which cannot be proved except by evidence. It has finally been concluded that a plaint cannot be rejected for want of proof and for this purpose only the plaint is to be looked into. This view lends support from Muhammad Fazal's case 1983 CLC 1165. The apex Court observed that "for the purpose of determination whether the plaint discloses a cause of action or not the Court has to presume that every allegation made in the plaint is true, therefore, the power to reject a plaint under this rule must be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief". Provisions of Order 7 are not attracted where the suit involves a factual investigation for determining the real issue in controversy. In the present case, it appears that the' plaint has been rejected for wane of, proof in support of the alleged claim of the plaintiff which is a clear violation of the scheme of Order 7, Rule 11 of C.P.C. The authority referred to and relied upon by the learned Advocate for the respondents is not applicable to the present controversy, keeping in view the peculiar circumstances of the case. In view of above, the appeal is accepted and the judgments and decrees of both the subordinate Courts are hereby recalled. The trial Court is directed to proceed with the matter in accordance with law. M.B.A./55/AJ&K Appeal accepted.