2011 Y L R 888

[Peshawar]

Before Mian Fasih-ul-Mulk, J

GOHAR REHMAN---Petitioner

Versus

RIAZ MUHAMMAD---Respondent

Criminal Revision No.165 of 2010, decided on 6th December, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. VII, R.11---Registration Act (XVI of 1908),
S.49---Suit for declaration---Rejection of plaint---Plaintiff who filed suit for declaration based
his claim upon Iqrar Nama and in alternate suit for specific performance of agreement to sell
regarding suit property was prayed--Deed of Iqrar Nama, was admittedly an unregistered
document which would neither create any title nor any right or interest in the suit property as
envisaged under S.49 of Registration Act, 1908---Declaratory suit under S.42 of Specific
Relief Act, 1877 on the basis of Iqrar Nama was not permissible; and suit for declaration
would not be maintainable---Even if said Iqrar Nama was considered as an agreement to sell;
and suit was considered to be that of specific performance, same would not be maintainable
being barred by limitation as said Iqrar Nama was scribed on 18-7-1996 and the suit was
brought on 2-4-2008---Impugned judgment and decree passed by the Appellate Court were set
aside and the judgment and decree passed by the Trial Court was restored, in circumstances.
PLD 2006 CLC (sic) and Muhammad Saeed v. Mst. Naheed Shagufta and others PLD 1990 Lah.
467 ref.

Abdur Rehman Qadir for Appellant.

M. Ismail Tanoli for Respondent.

Date of hearing: 6th December, 2010.

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 under-valued, 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 staterhent 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 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
maintain-able. 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.

H.B.T./64/P Petition allowed.