2002 PLP 3212 (YLR)

‑‑‑‑O. VII, R.11‑‑‑Rejection of plaint‑‑‑Trial Court while rejecting plaint, also recorded findings of fact and decided same at preliminary stage without framing issues and without recording evidence of parties‑‑‑Very fact that Trial Court was obliged to record said findings of fact at preliminary stage would establish that plaint did disclose a cause of action‑‑‑Plaint having disclosed cause of action, same could not be rejected‑‑ If the averments made in plaint were proved upon a proper trial, plaintiff` would be found to succeed and plaint could not be rejected and order rejecting plaint could not be sustained on any principle of law or equity‑‑ Order rejecting plaint was set aside. Hamid Khan for Appellant. Dilawar Mahmood for Respondents. Date of hearing: 27the March, 2002. MAULVI ANWARUL HAQ, J.‑‑ --On 15‑7‑1991 the appellant filed a suit against the respondents. According to the plaint so presented, the appellant works for gain in Saudi Arabia being an employee of Royal Saudi Air force. He purchased a plot of land measuring about 2 Kanals, 7 Marlas described in para. 2 of the said plaint from Mst. Zubaida Khanum, vide sale‑deed dated 5‑12‑1980, registered on 9‑12‑1980, that he was delivered the possession under the sale and he raised a boundary wall around the said plot and installed a gate on the boundary facing the main Walton Road, The plaint then alleges that taking advantage of the appellant's absence from Pakistan; respondent No.1 encroached upon the said plot and started raising construction. The said fact came to his knowledge on his visit to Pakistan on 5‑7‑1991. It was also apprehended that respondent No.1 is trying to alienate the plot. Enquiries were made and it revealed that respondent No.1 is holding a registered sale deed dated 31‑10‑1989 executed by respondent No.2 and registered on 7‑11‑1989. Respondents Nos. 7 and 8 are the witnesses of the said sale‑deed. Further inquiries revealed that the said document has been executed on the basis of sale‑deed allegedly executed by the appellant on 14‑11 -1988 in favour of respondent No.2 in respect of land mentioned in para. 5 of the said plaint. This document was registered on 29‑11‑1988 and is witnessed by respondents Nos. 5 and 6 and the appellant is shown to have been identified by respondent No.4. The Local Commissioner who conducted proceedings in the matter of registration of both the sale‑deeds is respondent No.3. It was stated that the said sale‑deed was not executed by the appellant and that he was not present in the country on or about the date mentioned as that of execution as also that of registration of the said sale‑deed. It was then reiterated that the appellant had never sold the plot to any one including respondent No.2. The said sale deeds were stated, to be result of fraud and misrepresentation and forgery committed by the respondents in collusion with each other. In para. 9 several grounds were stated on which according to the appellant the sale deeds were liable to be set aside. With these averments a declaration was sought that the said sale‑deed dated 14‑11‑1988 registered on 28‑11‑1988 in favour of respondent No.2 and the subsequent sale‑deed dated 31‑10‑1989, registered on 7‑11‑1989 are void and of no legal effect qua the land mentioned in the prayer clause. Decree for possession was also sought. A written statement was filed by respondent No. 1 contesting the suit wherein several objections were raised. In reply to para.2 it was explained that Mst. Zubaida Khanum was owner of Plot No.1642/268 measuring 2 Kanals only as per Revenue Records. This was the land, which, respondent No. 1 claimed to have purchased from respondent No.2. With reference to the sale deed in favour of the appellant it was stated that the figures "7 Marlas" have been interpolated. It was further stated that respondent No.2 is the younger brother of the son‑in‑law of the appellant who had been dealing with his property as also the property of his wife. In reply, to para. 3 it was stated that the respondent No.1 acted with due care and caution and that the Revenue Records as well as the sale‑deed executed in favour of respondent No.2 was scrutinized. Protection of section 41 of the Transfer of Property Act, 1882 was sought. The remaining allegations in the plaint were denied and traversed. This written statement was filed in Court on 2‑9‑1991. On the same date an application was filed by the appellant under Order VI, rule 17, C.P.C. seeking amendment in the plaint. In this application it was stated that the land mentioned in the plaint to be owned by the appellant in fact comprise Khasra No.1642/268 and not 1672/2,68 as mentioned therein. It was also stated that due to clerical error the said Khasra No. i.e. 1672/268 came to be mentioned in the sale‑deed dated 5‑12‑1980 and registered on 9‑12‑1980. On discovery of the said clerical error, the parties to the said document i.e. Mst. Zubaida Khanum, on the one hand and the appellant on the other, got a corrigendum execution and the same was registered on 29‑8‑1991. Thereafter, the appellant sought amendment of the plaint with reference to the correction .of the said particulars of the suit‑land and the ancillary corrections in various parts of the plaint as explained in para.5 of the said application dated 1‑9‑1991. The application was contested by respondent No.1 by filing a written reply on 17‑9‑1991. It may be mentioned here that an application was also filed for amendment of, the application for grant of temporary injunction accordingly. This application was also resisted by respondent No.

1. The learned trial Court took up the application for grant of temporary injunction, the application seeking amendment of the plaint and the application praying to amendment of the application for temporary injunction together and by means of order dated 26‑5‑1992 proceeded to reject the application Order XXXIX, rules 1 and 2, C.P.C. as also the application for amendment of the plaint and the application for amendment of the application for temporary injunction and then to reject the plaint itself. A decree sheet was also prepared on the same day.

2. Mr. Hamid Khan, learned counsel for the appellant contends that the learned trial Court has acted in violation of law while refusing to permit amendment of the plaint and consequently of the application for temporary injunction when for all practical purposes it was an amendment seeking correction of the description of the suit property and was not intended to change the nature or scope of the suit or to substitute the cause of action. As to the rejection of the plaint, argues that a plain reading of the plaint as amended would show that upon proof of the facts pleaded the appellant would be entitled .to relief and the plaint could not have been rejected. Also complains that the learned trial Court has proceeded to record findings on merits of the case while rejecting the plaint which could not have been recorded without putting the parties to trial and recording evidence. Mian Dilawar Mahmood, learned counsel for the contesting respondent No.1. argues that the learned trial Court has rightly observed that the suit is bound to fail. He, however, does not reply on the reasoning of the learned trial Court but states that in view of ground (xi) in para. 9 of the plaint the suit was bound to fail. Learned counsel insists that the amendment sought was tantamount to substitution of the cause of action.

3. We have gone through the trial Court's records which are available. The paper book filed by the learned ‑counsel for the parties are in accordance with the said records. We may note. here that respondent No.2 was proceeded against ex parte while out of the remaining respondents, respondents Nos. 7 and 8 who are the witnesses of the challenged sale‑deed in favour of respondent No. 1 also filed a written statement which is in line with the written statement filed by respondent No. 1. respondent No.4 also filed a written statement which is almost a verbatim copy of the written statement filed by respondent No.

1. We have already referred to the respective pleadings of the appellant and the respondent No. l above. A copy of the sale‑deed executed by Mst. Zubaida Khanum in favour of the appellant is available at pages 307 to 313 of the trial Court file. According to this document the said lady sold to the appellant for a consideration of Rs.1,50,000, the land mentioned as follows in the said document: Boundaries of the land are also given. This is how the land has been described in the plaint presented on 15 17‑1991. We have already referred to the written statement filed by respondent No.1 in the Court in response to the said plaint. In the said written statement it is respondent No.1 who has pointed out that Khasra number has been mentioned incorrectly and that the land owned by Zubaida Khanum bore Khasra No.1642/268. We may state here that the land is also described with reference to boundaries in para.2 of the plaint and these boundaries have not been questioner by respondent No.1. The application for amendment of the plaint contains particulars of the corrigendum which was got executed and registered, whereby the said error of description was corrected in the main sale‑deed itself. We have also referred to the contents of the application for amendment, filed by the appellant, in some detail above and we find that the prayer made therein was to correct the description with reference to the Khasra number of the suit property and to make ancillary amendment in view of the said correct description.

4. The matter of amendment of the plaint has been dealt with by the learned trial Court in paras.12 to 14 of the impugned order. Now the learned trial Court has very correctly stated in paras.13 of the order that the proposed amendment could not in any manner change the nature of the suit or substitute the cause of action. However, the discussion proceeding (para. 12) and following the said statement (para. 14) has no nexus whatsoever with the prayer made by the appellant for amendment of the plaint. The learned trial Court has concluded that even after the proposed amendment some paras. of the plaint will be containing averments which would be inconsistent with the amended provisions of the plaint. The reference of course is to ground (xi) of para. 9 of the plaint wherein the appellant has averred that he has nothing to do with the plot comprising Khasra No.1642/268 measuring 2 Kanals only. The learned trial Court has obviously made the said observations without even reading the amendment application. Had the learned trial Court taken care to read the said application, it would have found that a prayer has been made to substitute the said ground (xi) as mentioned in para. 5(v) of the application. To similar effect the amendments were proposed to be made in some other paras. of the plaint to make the said correction, to use the words in para. 13 of the impugned order "akin, consistent and ancillary". We, therefore, do find that the learned trial Court has acted in contravention of the provisions of Order VI, rule 17, C.P.C. as consistently interpreted by the superior judiciary of the country including the apex Court, while rejecting the prayer for amendment. Reference be made to the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345).

5. Coming to the matter of rejection of the plaint, the learned trial Court while hearing an application for temporary injunction, for amendment of the plaint and for amendment of the stay application, proceeded to hold that respondent No.2 is a bona fide purchaser, that the appellant has in fact executed the sale‑deed in favour of respondent No.2 that the respondent No.1 has spent a sum of Rs.30,00,000 on the improvement of the site that the property has been transferred by the appellant to respondent No.1 through respondent No.2 who has acted‑with lawful authority. No gain saying the fact that the said questions of fact could not have been decided without framing issues and recording evidence of the parties. The very fact that the learned trial Court felt obliged to record the said findings of facts at this preliminary stage, would go to establish the fact that the plaint does disclose a cause of action and the suit can be dismissed only upon recording of finding as done by the learned trial Court albeit without framing issue and without recording any evidence. We, however, cannot help observing that whereas the said‑findings have been recorded, the impugned order is completely silent regarding the allegation of the appellant that he was not even present in the country when the said first sale‑deed is stated to have been executed by him in favour of respondent No.2. We find a copy of the passport of the appellant appended with the trial Court file. Be that as it may, the appellant has denied the execution of the sale‑deed on the basis whereof respondent No. 1 is claiming valid title. In case the averments made in the plaint are proved upon a proper trial, the appellant is bound to succeed. The plaint could not have been rejected and the impugned order cannot be sustained on any principle of law or equity.

6. For all that has been stated above, this R.F.A. is allowed. The impugned order and decree dated 26‑5‑1992 of the learned Court is set aside. The application filed by the appellant for amendment of the plaint as well as the application for temporary injunction is allowed. The suit shall be deemed to be pending in the Court of learned Senior Civil Judge, Lahore where the parties shall appear on 30‑4‑2002. Records of the learned trial Court be remitted back to the learned Senior Civil Judge immediately. The appellant shall file the amended plaint and the amended application. The respondents shall, if they so desire, file amended written statement. Thereafter, the matter of temporary injunction will be decided. Issues will be framed and after giving an opportunity to both the parties to lead whatever evidence they wish to produce, the suit shall be decided in the light of the said evidence and in accordance with law. The cost of this appeal shall be borne by respondent No.1. H.B.T./A572/L Appeal allowed.