GOHAR REHMAN vs RIAZ MUHAMMAD

JUDGMENT MIAN FASIH-UL-MULK, J.---This is a revision petition under section 115, C.P.C. Against the judgment and decree dated 3-12-2009 of learned Additional District Judge-III, Haripur, whereby judgment and decree of learned Civil Judge-I, Haripur dated 21-7-2009 was reversed and case remanded back to the lower court with the direction to provide opportunity to both the parties to lead their respective evidence and for decision afresh on merits.

2. Facts of the case as gathered from record are that respondent filed a suit for declaration against petitioner. Petitioner submitted application under Order VII, Rule 11, C.P.C. For rejection of plaint.

Learned Civil Judge on acceptance of application rejected the plaint. Respondent preferred appeal and the learned Additional District Judge-III, Haripur, on acceptance of appeal remanded back the case to the lower court with the direction to provide opportunity to both the parties to lead their respective evidence and for decision afresh on merit. Hence, this revision petition.

3. Learned counsel for petitioner contended that agreement to sell dated 18-7-1996 does not create or confer any title and, as such suit for declaration under section 42 of the Specific Relief Act is not maintainable and was rightly rejected by the trial court. He further contended that even if the suit was to be considered that of specific performance, the same was hopelessly barred by time. It was concluded that the learned appellate court wrongly and illegally remanded the case to the trial court for decision afresh after recording evidence of parties.

4. On the other hand, learned counsel for respondent supported the impugned judgment and order.

5. Short question involved in this petition is as to whether the suit of respondent was maintainable or not and whether the trial court has rightly rejected the plaint under Order VII Rule 11, C.P.C. Or the appellate court was justified in setting aside the impugned order of trial court and rightly remanded the case for decision afresh after recording evidence.

6. It would be advantageous to reproduce the relevant portion of Order VII rule 11, C.P.C. Which is as under:-- "11. Rejection of plaint-The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law.

7. Respondent has filed suit for declaration and based his claim upon Iqrar nama dated 18-7-1996.

In alternate suit for specific performance of agreement to sell regarding suit property was prayed.

The deed of Iqrar nama is admittedly an unregistered document which would neither create any title nor any right or interest in A the suit property, as envisaged under section 49 of Registration Act and, as such, declaratory suit under section 42 of Specific Relief Act, 1877 on the basis of this document is not permissible and, therefore, suit for declaration would not be maintainable.

Reliance is placed on PLD 2006 CLC (sic). In the case of Muhammad Saeed v. Mst. Naheed Shagufta and others (PLD 1990 Lahore 467), it was held that the relinquishment deed relied upon and annexed to the plaint was liable to summary rejection for failing to disclose a cause of action.

8. Adverting to the alternate prayer even if this deed dated 18-7-1996 is considered as an agreement to sell and the suit is considered to be that of specific performance the same would be not maintainable being hopelessly barred by limitation as the deed was scribed on 18.07.1996 and the suit was brought on 2-4-2008.

9. Resultantly, while allowing this revision petition, the impugned judgment and decree dated 3-12- 2009 passed by Additional District Judge-III, Haripur is set-aside and the judgment and decree passed by learned Civil Judge dated 31-7-2009 is restored.

No order as to costs.