1982 PLP 1792 (CLC)

Iftikharul Haq Khan for Appellants. ' Ch. Amjid Khan for Respondent. Date of hearing : 9th December, 1981. This appeal is .directed against the order of the learned District Judge, Gujranwala, dated the 2nd December, 1978 accepting the respondent's appeal against the order of the learned Civil Judge, Gujranwala, dated the 15th March, 1978, whereby the respondent's plaint in the suit for a declaration that the exchange of the property in dispute brought about by means of the registered exchange deed, dated the 13th December, 1976, was void and for issuance of permanent injunction directing the appellants to restore possession of the land was rejected under Order VII, Rule 11 of the Code of Civil Procedure.

2. The exchange of the properties as detailed in the registered exchange deed was acted upon. The exchange deed did not contain any reference to payment of any amount by one party to the other. However the respondent contended in his suit that the appellants had promised to pay Rs. 2 25,000 as compensation for building and additional land. According to the respondent as the appellants had not discharged their liability in matter of payment of the aforesaid amount the exchange deed was void and liable to cancellation.

3. The appellants maintained, inter alia, that the respondent's plaint did not disclose any cause of action for getting the exchange deed declared void and, therefore, prayed for rejection of his plaint. The learned trial Court accepted the appellants' contention and rejected the plaint. However, the learned District Judge formed the view that it was necessary that the respondent's averments be made subject of issues and the suit should be tried. Therefore, he remanded the suit to the learned trial Court. Feeling aggrieved the appellants have approached this Court in appeal.

4. Nowhere in the exchange deed is found mentioned the respondent's assertion touching payment of any amount by the appellants to him. Only the exchange of properties and delivery of their respective possession has been recited in the exchange deed which was duly registered without any demur. For any alleged ' non‑fulfilment of consideration which 1s not set out as a condition in the exchange deed, the said document cannot be declared to be void nor can the possession of the exchanged property be given back to the respondent. The learned trial Court's view that the plaint did not disclose any, cause. of action was unexceptionable. There was no idea in proceeding' further with the trial of the suit. In these circumstances this appeal is accepted, the impugned order of the learned District Judge is set aside and that of the learned trial Civil Judge is restored. The appellants will get their costs of this appeal from the respondent. K. M. A. Appeal accepted