ALLAH BAKHSH Versus ABDUL REHMAN

ORDER

AJMAL MIAN, J: ‑‑This is a petition for leave to appeal against the judgment dated 6‑3‑1993 passed by a learned Single Judge of the Lahore High Court in Civil Revision No.10 of 1992 filed by the petitioner against the order of the Senior Civil Judge, Rahim Yarkhan, dated 19‑12‑1991 declining the petitioner's application under Order VII, Rule 11, C.P.C. for rejection of the plaint, dismissing the same.

2. The brief facts are that the respondents filed a suit for pre‑emption in respect of the suit land, of which sale transaction took place in 1990. The petitioner moved above application under Order VII, Rule 11, C.P.C. on the plea That as prior to the promulgation of Pre‑emption Ordinance, 1990, on 30‑1‑1990, there was no pre‑emption law during the period from 1‑8‑1986 up to 30‑1‑1990 and that the present suit was not saved by section 35 of the Punjab Pre‑emption Act, hereinafter referred to as the Act, as it was not filed during the period between 1‑8‑1986 to 28‑3‑1990 mentioned therein, but the above application was dismissed by the learned Senior Civil Judge for the following reasons:‑‑

"There is nothing in the Act from which it could be inferred that it does not save the cases which were instituted or pending between the disputed period and have not been dismissed prior to 28‑3‑1990. The purpose and object of section 35 is to save the cases which have even been dismissed. The suits which are not dismissed are on better footing. It will be against the spirit and objective of section 35 to hold that it does not save the suits which are not even dismissed. In the circumstances I am of the view that section 35 of the Punjab Pre emption Act of 1991 saves the present suit. Application is without any force, hence the same is hereby dismissed."

Against the above order, the petitioner filed aforesaid civil revision, which has been dismissed through the impugned judgment. The petitioner has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition, Mr. Izharul Haque, learned ASC appearing for the 'petitioner, has urged that as there was no law in the interregnum commencing from 1‑8‑1986 in view of the judgment of this Court in the case of Malik Said Kamal Shah (PLD 1986 SC 360) and till the promulgation of Pre‑emption Ordinance, 1990, on 30‑1‑1990, the respondents were not entitled to file the above suit on 28‑5‑1990 in respect of a sale transaction which had taken place when there was no pre‑emption law and, hence, the petitioner's above application under Order VII, Rule 11, C.P.C. should have been allowed.

4. The above contention seems to be devoid of any force. In order to press into service the provisions of Order VII, Rule 11, C.P.C., the averments contained in the plaint are to be presumed to be correct.. On the above assumption the plaint is to be examined and if the case falls under any of the clauses (a),(b),(c) and (d) of Rule 11, the plaint is liable to be rejected: The above clauses read as follows:‑‑

"(a) Whether it does not disclose a cause of action?

(b) Where the relief claimed is under‑valued, and 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."

5. In the present case on the basis of the contents of the plaint, it could not have been held that the plaint does not disclose any cause of action or that relief claimed is under‑valued and the plaintiff failed to correct the valuation in spite of the time fixed by the Court or the plaint is written upon insufficient stamp paper and the plaintiff failed to supply the requisite stamp‑paper within the time fixed by the Court or that the suit was barred from the statement in the plaint by any law. In this view of the matter, the learned Civil Judge was competent to reject the above application under Order VII, Rule 11, C.P.C. The petitioner is free to raise whatever legal or factual pleas are available to him to show that the suit is not maintainable but the rejection of the plaint could not have been sought on the above grounds which were pressed into service. Leave is refused.

AA./A‑1210/S Leave refused.