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Civil Appeal No.153 of 2012, decided on 19th December, 2013.

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of contract---Rejection of plaint---Scope---Plaintiff filed application for framing of additional issues with regard to sale-deed and recovery of sale money but no order was passed on the same and plaint was rejected---Consideration for rejection of plaint was the contents of the same keeping in view the facts of the case---Preliminary issues could not be decided without recording of evidence after filing of written statement and framing of issues---Trial Court was bound to attend to application for framing of additional issues and complete evidence and then record its findings on each and every issue---Findings on the facts were necessary for disposal of controversy between the parties---Judgment and decree passed by the Trial Court were set aside and case was remanded with the direction to dispose of the same after attending application for framing of additional issues and recording of evidence of both the parties. 2012 CLC 1445 ref. 2002 SCMR 338 and 2006 CLC 1257 distinguished. 2010 SCR 295 and 2012 CLC 1445 rel. Liaqat Hussain Mughal for Appellant. Sardar Ishtiaq Ahmed for Respondent No.1. Raja Tabraiz Iqbal for Respondent No.3.

This appeal has been filed against the judgment and decree of Additional District Judge Kotli dated 26-9-2012, whereby the suit filed by the present appellant was rejected under Order VII Rule 11 of Code of Civil Procedure. 2. Brief facts giving rise to the present appeal are that the present appellant Surriya Begum filed a suit for specific performance against the respondents in the court of District Judge Kotli, which was made over to Additional District Judge Kotli for disposal under law. It was stated in the suit that respondent No.1 sold a piece of land measuring 8 Marlas out of the land measuring 14 Kanals and 15 Marlas bearing survey No. 112 Khewat No. 9 Khata No.105/95 situated at village Seri Khanpur Khuiratta District Kotli to the present appellant/plaintiff through oral sale against a price of Rs.6,90,000 on 14-8-2009. The appellant paid Rs.2,50,000 to respondent No.1 at Habib Bank Seri Branch in presence of witnesses. The said amount was deposited by respondent No.1 in his bank account. It was committed that respondent No.1 will execute a sale-deed in favour of the appellant/plaintiff on receiving the remaining amount. Respondent No.1, later on executed a power of attorney in the name of respondent No.2 Muhammad Khushal who executed a sale-deed regarding the disputed land in favour of respondent No.3 Muhammad Rafique. This transfer of the disputed land was made fraudulently and malafidely. The said sale-deed was executed on 20-9-2009 and a fictitious price of the land as Rs. 12 lacs was entered in the sale-deed. The said sale-deed is null and void over the rights of the appellant/ plaintiff and liable to be cancelled. It was prayed to issue a decree of specific performance in the name of the appellant/plaintiff while cancelling the sale-deed. 3. The respondents submitted written statement, stating therein that the appellant/plaintiff has got no cause of action and the suit is not maintainable on the basis of an oral agreement of sale. It was prayed by the respondents to dismiss the suit. Issues were framed. The learned Additional District Judge, Kotli rejected the suit under Order VII, Rule 11 of C.P.C. after hearing the parties. Hence, the present appeal. 4. Arguments were advanced by the learned counsel for the parties. Mr. Liaqat Hussain Mughal Advocate, the learned counsel for the appellant argued that the version of the appellant was admitted by respondent No.1 who submitted cognovit regarding the same. The learned counsel requested to remand the case directing the learned Additional District Judge, Kotli to dispose of the case after recording of evidence. The learned counsel referred the following precedents in support of his arguments. 2010 SCR 295 2012 CLC 1445 5. While controverting the arguments advanced by the learned counsel for the appellant, Raja Jabraiz Iqbal Advocate, the learned counsel for respondent No.3 Muhammad Rafique contended that the appellant/plaintiff had no right over the disputed land on the basis of any oral sale and had no cause of action to file the suit. No agreement to sell was registered in accordance with the provisions of law. The suit was rightly rejected by the learned Additional District Judge, Kotli. The learned counsel requested to dismiss the appeal and referred the following precedents in support of his arguments. 2002 SCMR 338 2006 CLC 1257 Sardar Ishtiaq Ahmed Advocate, the learned counsel for respondent No.1 owned the arguments advanced by the learned counsel for respondent No.3 and requested to dismiss the appeal. 6. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and the precedents referred by the learned counsel for the parties. It is an admitted fact that respondent No.1 Altaf Hussain submitted a compromise in the shape of an application in the court of Additional District Judge Kotli and got recorded his statement on 30-5-2011. The said respondent admitted the contents of the suit filed by the present appellant and requested to issue a decree in favour of the present appellant. The statement of one Muhammad Shafi was also recorded who identified the respondent Altaf Hussain. Later on, the statement of Mr. Khadam Hussain Manager Habib Bank Seri Branch was also recorded. The record reveals that an application was submitted on behalf of the present appellant/plaintiff on 20-9-2012 for framing of additional issues regarding the sale-deed and recovery of sale money paid by the present appellant. This application remained unattended and no proper order was passed on the said application. The learned Additional District Judge, Kotli heard the arguments on legal issues and later on rejected the suit under Order VII, Rule 11 of C.P.C. 7. It is an admitted principle of law that the main consideration for rejection of a plaint under Order VII Rule 11 of C.P.C. was the contents of plaint keeping in view the peculiar facts of the case. After filing of written statement and framing of issues by the court, the preliminary issues cannot be decided without recording of evidence. The preliminary issues can better be decided after recording of evidence. This principle has been laid down in the precedents 2010 SCR 295 and 2012 CLC 1445. It was enjoined upon the learned Additional District Judge Kotli to attend the application for framing of additional issues submitted by the present appellant and to complete the evidence and then to record his findings on each and every issue. The facts that respondent No.1 Altaf Hussain admitted all the contents of the plaint and he had received sale money from the present appellant regarding sale of the disputed land before execution of the impugned sale-deed in favour of respondent No.3 Muhammad Rafique, needed findings of the learned subordinate Judge. The findings on the said facts are necessary for disposal of the controversy between the parties. The precedents referred by the learned counsel for respondent No.3 Muhammad Rafique, have no conformity with the facts of the present case. Having in view the above mentioned circumstances, it seems just and proper to remand the case to the trial Court. So, the judgment and decree passed by the learned Additional District Judge Kotli is hereby set aside and the case is remanded with the directions to dispose of it after attending the application for framing of additional issues and recording evidence of both the parties. No order as to costs. AG/37/HC(AJ&K) Case remanded.

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