Mst. SHAMIM AKHTAR vs MUHAMMAD NAWAZ
The petitioner filed a suit for possession through pre-emption regarding a disputed property. The respondent filed an application under Order 7, Rule 11, Code of Civil Procedure 1908, contending that the property was situated in a Cantonment Area and was therefore exempt from the right of pre-emption. The Trial Court allowed the application, a decision subsequently affirmed by both the appellate court and the High Court. Before the Supreme Court, the petitioner argued that the property should be considered pre-emptiable based on precedent. However, the Supreme Court observed that it was an admitted position that at the time of the sale and the institution of the suit, the property was not subject to the right of pre-emption. The Court further noted that the petitioner had failed to plead the property's location outside the Cantonment Area in the written statement and that the matter was decided on facts patent on the record. Consequently, the Court found no legal infirmity in the lower courts' judgments, dismissed the petition, and refused leave to appeal.
- Is property situated in a Cantonment Area exempt from the right of pre-emption?
- Can a plaint be rejected under Order 7, Rule 11, Code of Civil Procedure 1908 if the right of pre-emption is not available at the time of the sale and institution of the suit?
- Does a party have a right to lead evidence on a matter not pleaded in their written statement?
- Order VII Rule 11, Code of Civil Procedure 1908
ORDER
ABDUR RAHMAN KHAN, J.--- Plaintiff filed suit for possession through pre-emption in respect of the disputed property. The vendee/defendant submitted an application under Order 7, Rule 11, CPC to the effect that the property is not covered by the definition of urban immovable property as it situated in Cantonment Area and, therefore, is exempt from pre-emption. This Application was allowed by the Trial Court which order was affirmed by appellate Court and also confirmed by the High Court.
2. The learned counsel appearing for the petitioner submitted that in view of the judgment "Haji Rana M. Shabbir Ahmed Khan vs. Govt. Of Punjab Province, Lahore" (PLD 1994 S.C. 1), the disputed property was made pre-emptiable. However, it is admitted position that at the time of sale and at the time of institution of the pre-emption suit the property in question could not be made subject- matter of pre-emption suit. The grievance of learned counsel for the petitioner is that he was not allowed an opportunity to substantiate that the property in dispute does not lie in Cantonment area. Petitioner has not pleaded so in his written statement and moreover, the case was admittedly decided on facts patent on record which needed no evidence. It is admitted position that right of pre-emption was not available to the petitioner at the time of sale and at the time of institution of suit. Therefore, we find no legal infirmity in the impugned judgment. This petition is dismissed and leave is refused.