P L D 2008 Peshawar 135 (PLP)

MUHAMMAD ALAM KHAN, J.

Impugned herein is the order of the learned Additional District Judge-III, D.I. Khan vide which the appeal filed by plaintiff-respondent No.1 against the order of Civil Judge Paharpur at D.I. Khan dated 26-10-2005 rejecting the plaint of the plaintiff-respondent, was set aside and the case was remanded back to the learned trial Court for decision on merits in accordance with law.

2. Briefly narrated, the facts of the case are that Haqnawaz plaintiff-respondent No.1 brought a suit for pre-emption on the basis of an oral sale dated 25-10-2003. The learned trial Court summoned the defendant-petitioner Aurangzeb Khan and another who, instead of submitting the written statement, filed an application under the provisions of Order VII Rule 11 C.P.C. praying for rejection of the plaint on the main ground that the suit-land had been purchased by Aurangzeb Khan defendant-petitioner but later on that was cancelled and the vendor then alienated the suit land to the other vendees. It was averred in the application that as there is no sale in existence, thus, the plaint was liable to be rejected. The learned trial Court, after calling for replication, hearing the learned counsel for the parties and perusing the data available on the record, rejected the plaint vide suit No.285/1 Nim decided on 25-6-2005.

3. Feeling aggrieved, Haqnawaz plaintiff-respondent No.1 filed R.C.A. No.42 of 2005 which came for hearing before the learned Additional District Judge-III., D.I. Khan Aurangzeb Khan Khattak who, while accepting the appeal vide order dated 17-4-2007, set aside the impugned order of the Civil Judge and remanded the case back to the Civil Judge for decision on merits.

4. It was submitted by learned counsel for the petitioner that as the sale was not in existence, therefore, no suit for pre-emption was competent and the learned Civil Judge has rightly dismissed the suit of the plaintiff-respondent No.1 and the learned Additional District Judge has fallen into an error while accepting the appeal of the plaintiff-respondent No.1.

5. I have given my anxious consideration to the facts and circumstances of the case and have perused the data annexed with the civil revision.

6. Perusal of the record shows that the alleged cancellation of the sale deed, which has been admitted by Aurangzeb Khan defendant-petitioner in his application dated 27-9-2004, was a matter which could be thrashed out by the learned trial Court after recording of pro and contra evidence and the shortcut and summary procedure adopted by the learned trial Court was not warranted under the law.

7. Once averments are made in the plaint, those averments only had to be taken into consideration while rejecting the plaint especially in the circumstances when in the instant case the defendant-petitioner had admitted the factum of sale in his application for rejection of the plaint who had alleged its cancellation. In such situation serious disputed questions were involved which could only be thrashed out after recording of pro and contra evidence after submitting the written statement and framing of issues as held in Ghulam Dastagir and others v. Mst. Mariam and others (1993 MLD 1005 Karachi) and Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others (1993 MLD 2464 Lahore).

8. The order of the learned Appellate Court is strictly just, legal and in accordance with the established principle of law which calls for no interference and the same is maintained.

9. In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is hereby dismissed in limine. H.B.T./116/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.