SUMERA HAMEED NAZLI Versus FARMAN ALI Peer Muhammad Asif Rafi Shah , Mian Anwar Mubeen Ansari

ORDER

Brief facts of the case are that appellant filed a suit seeking declaration that she is leasehold rights holder apart from other prayers. Respondents Nos.1 and 2 filed an application before the learned trial Court under Order VII, Rule 11, C.P.C. for rejection of plaint which was contested by the appellant. Learned trial Court vide judgment dated 25-2-2003 rejected the plaint, same is being assailed through instant appeal.

2. It is contended by learned counsel for the appellant that sale in favour of the appellant had already completed on 21-6-1999, therefore, a declaration on the basis of said sale could be sought by the appellant. Transaction of the said date cannot be said to be an agreement without recording evidence and examination of the said document.

3. On the other hand, learned counsel for respondents Nos.1, 2 and 3 have opposed by contending that according to paras.2 and 6 of the plaint impugned transaction allegedly having taken place between the appellant and her mother is that of an agreement and on the basis of an agreement a declaration under section 42 of the Specific Relief Act could not be granted, thus impugned order is in accordance with law.

4. We have considered arguments of learned counsel for the parties.

5. In para.2 of the plaint appellant had claimed to be leasehold rights holder on the basis of following words:--

The words used, in the above quoted para have two different aspects; one is of "(Iqrar Nama) and the other is of "(Takmeel-e-Baih)". It has yet another aspect if it is read as a whole as "(Iqrar nama Takeel-e-Baih )". All the three angles of looking at the said phrases bring different results on the suit, therefore, it could not be so lightly presumed that said document was merely an agreement and the element of sale has not yet completed. In these circumstances, we are of the view that the case did not attract provisions of Order VII, rule 11, C.P.C. at this stage. Resultantly, we allow this appeal, set aside the impugned order dated 25-2-2003 and remand the case to learned trial Court for its disposal in accordance with law. Before parting, it may be observed that any observation made in this order shall not prejudice the case of either party at the trial. Parties are directed to appear before learned Senior Civil Judge, Multan on 29-4-2009, who may hear the case himself or may entrust the same to any Court of competent jurisdiction.

C.M. No.439-C-2009, C.M. No.440-C-2009.

6. Learned counsel for the applicant does not want to press these applications. Dismissed as not pressed.

H.B.T./S-84/1 Case remanded.