Abdul Ghani Vs Jamil ur Rehman

I

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

TUDGMENT

Date of hearing 0Lqi.2018

Petitioner (Abdul Hajt Ghulam Basit, Ghani) by: Advocate.

Respondent (Jamil- Mr. Muhammad ur-Rehman) by: Nawaz, Advocate.

SYED ARSHAD ALI, J:- Petitioner through the instant revision petition has called in question the judgment and order of learned Additional District Judge, Ghazi Haripur dated 19.03.2015 whereby the learned Additional District Judge, dismissed Civil appeal No. 29113 of 2014 filed by the petitioner against the judgment and decree of learned Civil Judge, Haripur dated 06.03.2014, through which the leamed trial Court had rejected the plaint of the respondent.

2.Essential facts of the case are that n respondent Jamil-ur-Rehman purchased suit TuJailf Justice $red Arshad Ali

V

properly through mutation No. 745 attested on 27.05.2013 from Liaqat Khan. According to the averments in the plaint, the plaintifflpetitioner came to know about the said sale through Muhammad Ajmal S/o Ghulam Rabbani on 15.08.2013 at 05:00 PM and as such he performed the jumping demand (Talb-i- Muwathibat) in presence of Mehboob S/o Ghulam Ameer and Shahzada Khan S/o

Muhammad Safdar. He has further stated in the plaint that the notice of Talb-i-Is hhad was issued through registered acknowledgement to the present respondent on 28.08.2013, whereas the suit was filed on 23.09.2009.

3 The learned trial court issued notice to the respondent/defendant who appeared and filed application for rejection of plaint under Order-VII Rule-l I of Civil Procedure Code 1908 on the grounds that he has alienated the suit property to his son through mutation No. 746 dated 27.05.2013, prior to the institution of suit.

4.In view of the aforesaid facts, the y'" petitioner/plaintiff filed an application for Tufail/* Justice Syed Arshad Ali

J

V

impleadment of the son of respondent/defendant being donee of the suit property. The learned trial Court while relying on the ratio of the judgment of the honourable Supreme Court of Pakistan, reported in PLD 2009 SC 93, rejected the plaint vide order dated 06.03.2014 and resultantly the application of the petitioner/ plaintiff was also dismissed. The appeal filed by the petitioner was also dismissed by the learned appellate Court vide impugned judgment/ order/decree dated I 9.03.20 1 5.

5 Arguments heard and record

perused.

6 The question whether the subsequent transaction was a valid devise to ward off the right of pre-emption of the petitioner/plaintiff or whether the same was only a disguise/sham transaction in order to deprive the petitioner/plaintiff from his right of pre- emption can only be answered after recording evidence.

The Honourable Supreme Court of

Pakistan in "Muhammad Hussain Vs

Tufailf Justice Syd Arshad Ali

V

Muhammad" (PLD 2010 SC 503) has held that:-

"We have heard the learned counsel for the parties and have gone through the orders passed by all the Courts below, It is perttnent to mention here that in the instant case the suit was instituted within the period of prescribed limitation i.e. 120 dryt. Now the only question for consideration is thatfor the purpose of second vendee, who has purchased the property subsequently, the period for filtng of suit or impleading him as party, shall run afresh or on the basis of the suit, which had already been instituted against the original vendee or he would be impleaded without taking into consideration that the sale had taken place beyond the period of limitation. On having gone through the relevant provisions of la,v on the subject as well as the judgments cited by the learned counsel for the petitioner. It may also be noted that an earlier judgment, tn the case of Mustaqim Khan v.

Abdullah Khan and others PLD l95I Pesh. l, while examining the same proposition, it has been held that:--

TufaiW Justice Syed Arshad Ali

llv pDrlslY Pd(s ac!$nr */fiD{nJ -atd p tttutad ol a1qo71nbau1 aq IUM tt yqry I 'os 3u1aq ,'u stqJzqnua8 s1 uoucDsuDu allt papmotd ulDlc s,,ro1drua-atd aLlt wa/ap ol sD os 'wa1ry a1uo '.to1dtaa -atd aqt o7 TqEy "tolndns o saq oqt. "to totdwa-atd aqt qflr*ry31t 1onba uD saq oqt4. uos,od o of ilas rtoru aapuaa, D pqt paqslnDtsa-fla0+ oslo q q 'aapuat lstgf aqt ruo4[ unoJ lo 4no rQ"odo,td ilns aqt stnq |ms uorldrua-atd o Su8uuq to poa1sul uos.od D qcns asDc u! rvto1lot pu pruoqs ilnsil auDS aql ,(qu suosoat rua3oc ou s! aDqt',QruanbasuoJ'paryns -uou aq il?u to1drua-atd aql puD paaccns iltM lms stll 'rt;ndo,td aruDS aqt to padsa,t u! Uns uot4dua-atd o stuuq Qa1o,t1td t!,odo"td ilns aqt 34tnq to poalsul rcqdrua-atd aql q uoqdwa --ad to tt431t toptadns D Sutssassod uostad ofi tot4t pailWpl s! U 'oslD suouD,Dplsuoc Jaqp uo pag[1lsn! aq uDc uownlcuoc slqJ '€f 'r'T'qsad ercI u! uatpt auo aqt o7 pattatatd aq ppoqs 'gg€ 'qDT 0€61 YIV puD 'lg€ sasDc uo?pul 0t '906t pncaf, qD{und 9Z ut uayq wl to Ma!^ aqt pW apnlcuoc 'anta.tatp 'J 'a1os-at aqt s$lxa-ad Tq8ut aqt :ry81t uau tuo afi)an pu saop'a"tota"oqt'a1os-a"t aq1 'pa4ca[a s! aps sD uoos sD acua$lxa oru! saruoc uoudwa-atd to tl71,t D pqt paluap aq puuDc l! 'uo1,7,,

A

s

v

emptor to defeat a person who has a superior rtght of pre-emption and to whom the suit property is re-sold within a period of Itmitation, simply because the pre-emptor rushes to Court immediately after a sale is effected."

The aboye principle has been reiterated in the judgments cited by the learned counsel fo, the petitioner. As far as the judgment relied upon by the learned counsel for the respondent is concerned, no law has been declared in the same as in that very case, leave to appeal was declined. It ,s also important to note that principle of lis pendens is not appltcable to the cases, where a suit for pre- emption z's already commenced within the pres cribed time. There.fore. asfar as the secondvendee, who had purchased the propertv from the first vendee is concerned, his rtght would also be governed on the basis o.f the suit. which has alreadlt commenced tn respect qf the same propertv because the right of pre-emption has been claimed in respect of the propertv and not in respect of the person who had become first or second vendee.

TuJailF Justice Syed Arshad Ali

V

Thus, for the foregoing reasons, we are of the opinion that the judgment under review is required to be revisited; as result whereof the petition ls accepted and the appeal filed by the petttioneus allowed. Consequently, the judgment of the High Court dated lSth December, 1994 is set aside and the case is sent back to the learned High Court, where now the matteus pending, for consideration to implead Fazal-e-Akbar as respondent and then to dispose of the matter pending before it. No order as to costs."

(Underline is for emphasis)

Both the Courts below have fallen in the field of error by rejecting that plaint while ignoring the settled principle of law that for the purpose of deciding the application for rejecting the plaint, only the contents of the plaint have to be taken in consideration. In "Muhammad Zaman & others Vs. Shah Wazir Khan, PLD 2002 Peshawar 45", it was held:- "In order to invoke the applicability of this clause the Court shall look into the contents of the Plaint /; only and shall examine the plaint on its frr" value. If Tujail/* Justice $ted Arshad Ali

nY Porlstv p*s aq$nf r/ilo[nt Sutmq TuopuataP aqt snql 'lDtu aql P pacnPPD salYod Eut4oquoc aq, to acuaPto aqt 8u1wn1orc Puo Eutp.tocat nttD paqosa.t aq t1uo uoc tlcttlt^ sa$.rud aql uaa$l.aq anss! uo sauocaq tl uaql ,(s,o,toquoc ,fiio s,opua&ua's&ulpoa1d 7ot1,t Eulaq '\uarua1o1s uailU& D m paulDluoc sluaru"Dlo aW tt 'D^aospq$ ta11a,t tuo ot pafi!rua aq ,ou ppow tfit4o1d 'pa,totd ata$ 74o7d aqt u! apDu suot|oSalP llD t1 uao Totlt'27?' [ [ apy 'il/l ,Dp,tO lo snqawond aqt ultltlt+ 'uo8nlcuoc alqustsat.4 altt ot saruoc unoJ aLtl rt tpo apo4 aq to nuod 7u1o1d o &m4ca{at aqt q uosat wry smolot snry U 'anu sDt^ 7u1o7d aW u! apo.tt uouo8alo tCtata pry awnsatd ot soq uno) aql'pu to uollcD to asnDc sasopstp 1qo7d aLfi Dqtaqv Eututru"nlaP lo asodmd aW nl lDql papu aq q osp s! lI 'rQnd-aflsoddo aLfi lo luarussDrDq ,(russacauun puD s1tno7 lo aryt lo a8oqsou allt plo^D o7 uol4dacu! st! p paunq aq of sa,tlnbat uo17o8t717 ssapln{ aqt sD 7u1o7d ary to uoucafat aqt np"to llDlts LmoJ aw uaqr2'd') 'II/I DptO to tt a1nyto (p) ot (o) sasno1c ut palDJaunua,qlw.t{ur tuo sa7oc1pu1t7as4 tq s4o1d aqt n

V

filed a written statement and pleas raised by him in the nature ofdefence in suit cannot be looked intowhile c ons idering applic ation for rejection of the plaint. Wisdom and guidance ,s sought fro* the judgment of the august Supreme Court of Pakistan rendered in case of Haji Allah Bakhsh v. Abdul Rehman and others (1995 SCMR 459) wherefrom the relevant observations are given as follows:--

"The above contention seems to be devoid of any force. In order to press into service the provtsions of Order VII, Rule I l, C.P.C., the averments contained in the plaint are to be presumed to be coruect.

On the above assumption the plaint ts to be examined and if the case follt under any of the clauses (o), (b), (c) and (d) of Rule 11, the plaint ,s liable to be rejected."

Similarly, in "Aurangzeb Khan Vs.

Haq Nawaz & others, (PLD 2008 Peshawar 135)', the stated view was further affirmed by 4r holding:-

Tufailf Justice $nd Arshad Ali

l0

"Once averments are made in the plaint, those averments only had to be talren 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. MsL Mariam and others (1993 MLD 1005 Karachi) and Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others (J,993 MLD 2464 Lahore)."

ln "Atla Ultah & 6 others vs. Sanaullah and 5 others, (PLD 2009 Karachi page 38,)" it was held that:-

"The plaint can onlY be rejected under clause (d) of Order VII Rule I l, C.P.C. if fro* the statement in the Plaint the / Court comes to the conclusion that the same is barred by anY law. For Tufailf Justice Syed Arshad Ali

1l

v dectdtng an applicatton under Order VII Rule I l, C.P.C. the contents of the plaint has to be taken as true on its face value and the pleas raised in defence cannot be looked into."

The plea of defence that the suit property has been further alienated and in absence of performingTalabs on the second transection the suit is not maintainable, requires evidence to ascertain as to whether the same is a genuine transaction or a result of collusion to ward off the right of pre-emptor of the petitioner/plaintiff. In Abdul throush lesal heirs Vs.

Mushk-e-Alam & another. (2001 SCMR 798), the honourable Supreme Court of Pakistan has held that:-

"Reverting to the question of second sale allegedly made by the vendee in favour of appellant No.2, it may be mentioned that though in the written statement, a sPecific ground was taken that the appellants should have pre-empted the said sale as the previous sale had become non-existent but t fro* the findtngs recorded by the trial Court under 4" Issues Nos. I and 4 that no

TuJailF Justice Syd Arshad Ali

t2

evtdence was produced to prove the said issues by the appellants on whom onus was placed nor the same was pressed during final arguments, it is clear that the same were abandoned. These issues were answered against the respondents. Though the respondents could not file qn appeal as the suit had been dismissed on other grounds but they could certainly under, Order XLI, Rule 22, C.P.C, support the judgment of the trial Court of dismissal of suit on other grounds also decided against them. It is manifest fro* the judgment of the First Appellate Court which accepted the appeal of the appellants that no attempt was made by the appellants to argue etther orally or by making application against the findings recorded by the trial Court on Issues Nos. I and 4 against them. In the revision petition, it was stated in the naruation of facts that the said second sale had been made but no ground was taken as a ground of attack against the findings of the trial Court under Issues Nos.l and 4. Nothing was stated in the grounds of revision petition that the observations of the trial Court that the said issues / were not pressed were not TuJaiU* Justice Syed Arshad Ali

V

correct. The learned Judge of the High Court of his own without examining the case on the said issues in detail merely observed that the appellants failed to make any attempt starting fro* the Talabs upto the filtng of pre-emption suit in respect of the subsequent transaction in favour of respondent .No.2. Before recording such a finding, the findings of the trial Court under Issues Nos. I and 4 were required to be set astde and the second transaction of sale was to be scrutinized in the tight of the ground taken by the appellants in the plaint that the same was not the real transaction but was created merely to create hindrances in the way of exercise of right of pre- emption by the appellants. "

The close perusal of the contents of the plaint clearly reveals a cause of action to the petitioner/plaintiff to bring a suit against the impugned sale. Indeed the suit has been filed within the prescribed period of limitation against the original transaction. The suit is neither barred by any law nor does it lacks disclosing a cause of action. Hence, while accepting the present revision petition, both the impugned orders are TuJailf Justice Syed Arshad Ali

t4

set aside. Resultantly, the application for impleadment of the alleged donee in the suit is accepted.

Announced.

Dt.01.03.2018.

JADGE

Tutail/* Justice Syd Arshad Ali

i

.ti.

.:ti.

'i.{

|.l a

I !

c Al *l

Tehsil & Resident of Maghd S/o Abdullah Abdul Ghani

DisuictlluiPur'

Resident of Maghari S/o Fazal-u-Rehman Jamail-u-Rehman Khataib Jama Mohallah Dawad Abad PresentlY residing rn Shandar Pur Tehsil Dawad Abad Dahari Masiad

HuiPur gE toDL

F

" -:';i/;i+

J> (

flft;

Ab:$o

N")>I REVI$ON AG AINST TIIE

JUDGMENT

I

ADDITIONAL DISTRICT

JTIDGE

VIDE WIilCH

IIARIPUR DATED 19'03'015

JUDGMENT /

APPEAL AGAINST THE

ee" n.o'o;11.. tA

L

I '--

l