2007 PLP 2365 (YLR)

SYED HAMID ALI SHAH, J.

Order dated 20-2-2006 of learned lower appellate Court has been assailed in the instant revision petition, whereby learned appellate Court while accepting the appeal, set aside the order of dismissal of the suit filed under Order II, rule 2, C.P.C., consequently remanded the case to the trial Court with the direction to frame issue and allow the parties to produce their evidence, on the question that whether or not the attestation of the registered sale-deed dated 8-6-1983, was in the knowledge of the respondent.

2. Brief facts as stated by learned counsel for the petitioner are that the petitioner purchased the land through registered sale-deed dated 8-6-1983 and mutation to that effect was attested. Learned counsel has added that respondent No.1 asserted in his plaint that he had purchased the land, through sale-deed dated 17-3-1980 and the rdvenue authorities were not entering the mutation in their record. The petitioner on having the knowledge, moved an application under Order I, rule 10, C.P.C., for being arrayed as a party, which was allowed on 22-6-1995 and the parties were directed to adduce their evidence. Respondent No.1/plaintiff failed to produce his evidence, resultantly, learned trial Court invoked panel provisions of Order XVII, rules 2 and 3, C.P.C. The defence was closed and suit was dismissed. The appeal also met the fate of dismissal on 19-1-2000. Respondent No.1 thereafter Flied another suit, after the lapse of seven months of the dismissal of the appeal. Theapplication under Order VII, rule 11, C.P.C. was filed, which was allowed and suit was rejected vide order dated 8-2-2001, against which the appeal was accepted and the case was remanded to the trial Court vide judgment and decree dated 20-2-2006, hence this revision petition.

3. Learned counsel has submitted that respondent No.1 after having the knowledge of sale of suit-land through a registered sale-deed, was bound to amend the plaint and seek the relief of cancellation or the registered sale-deed in favour of the petitioner but neither the plaint was amended nor sale-deed in favour of the petitioner was challenged. Resultantly, respondent No. l has relinquished the right to challenge the mutation or sale-deed, in favour of the petitioner. He added that subsequent suit is barred under Order II, rule 2, C.P.C. Learned counsel in support . of his contention has placed reliance on the cases of "Qalandar Din and 4 others v. Rasul Khan" (1991 SCMR 525), "Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others" (1996 SCMR 1047), "Crescent Jute Products Limited v. Federation of Pakistan through Secretary, Ministry of Industries, Islamabad and 2 others" (1989 ALD 466) and "Mrs. Irene Wahab v. Lahore Diocesan Trust Association" (2002 SCMR 300).

4. Learned counsel for respondent No.1, on the other hand, has submitted that he had no knowledge of the sale. He went on to argue that respondent/plaintiff made all assertions in the first suit, which were in his knowledge at the relevant time. He remained unaware of the transfer of suit-land in favour of the petitioner, that is why the respondent had not challenged the sale or mutation at the time of institution of the suit. He has submitted further that therespondent's suit can be hit by Order II, rule 2, C.P.C. only when he had the knowledge of sale.

5. I have heard the learned counsel for the parties and perused the material available on the record.

6. There is no cavil with the proposition that the bar of Order II, rule 2, C.P.C. can be imposed if the plaintiff has the knowledge of the facts, the same are narrated in the plaint but no relief has been claimed to that extent. The facts which are not in the knowledge of a plaintiff if omitted, do not attract the provisions of Order II, rule 2, C.P.C. The appellate Court has remanded the case to the trial Court to determine the fact whether the plaintiff/respondent No.1 had the A knowledge or the sale at the time of filing the suit. Such question can only be determined when the evidence is recorded after framing of the specific issue. No such issue has been framed as such. The impugned order of the appellate Court, remanding the case to ascertain through evidence, whether or not respondent. No. l was in the knowledge of sale of disputed land to the petitioner is not open to exception.

7. The trial Court is directed to frame a preliminary issue as per remand order to the effect, whether or not the respondent No.1 had the knowledge of sale of land in dispute to the petitioner, if so, will it attract B the penal provisions of Order II, rule 2, C.P.C. Learned trial Court will proceed with the preliminary issue and thereafter proceed with the main case if the plaintiff .crosses successfully, the hurdle of the preliminary issue.

8. Since the instant order is passed in presence of both the parties, therefore,fresh notice to any of the parties is not required. Both the parties shall appear before learned Senior Civil Judge, Lahore on 20-4-2007. On the said date, learned Senior Civil Judge will either keep the case with him or entrust it to any other Civil Judge. The petitioner will file the written statement and after receiving the written statement on the record, the Court will frame the above issue and treat it as preliminary issue and decide the same in accordance with the law. Disposed of with the above direction. S.A.K./D-6/L?????????????????????????????????????????????????????????????????????????????????????? Caser remanded.