Law: Civil Procedure Code (V of 1908)

Section: O. 7, R. 11

Civil Procedure Code, 1908 (V of 1908) O. 7, R. 11-Pre-emption case-Plaint rejected on the ground that no sale has taken place-Challenged-Approach of both subordinate Courts is faulty and is against scope of Rule 11 of Order 7 of C.P.C.-Under chapter 2, Section 4 of Right of Prior Purchase Act, 1993 BIK, scope of right of prior purchase has been postulated-A suit can be filed even where a regular sale has not taken place and parties have alienated a land through any other mode for defeating right of prior purchase-Court can come to this conclusion only after providing parties opportunity of leading evidence in support of their respective claim-In such cases, conduct and intention of parties are most relevant which cannot be proved except by evidence-It has finally been concluded that a plaint cannot be rejected for want of proof and for this purpose only plaint is to be looked into-This view lends support from Muhammad Fazal's case 1983 CLC 1165-.-Apex Court observed that "for purpose of determination whether plaint discloses a cause of action or not Court has to presume that every allegation made in plaint is true, therefore, power to reject a plaint under this rule must be exercised only if Court comes to conclusion that even if all allegations are proved, plaintiff would not be entitled to any relief-Provision of Order 7 are not attracted where suit involves a factual investigation for determining real issue in controversy~In present case, it appears that plaint has been rejected for want of proof in support of alleged claim of plaintiff which is a clear violation of scheme of order 7 Rule 11 of C.P.C.-In view of above, appeal is accepted and the judgments and decrees of both subordinate Courts are hereby recalled-Trial Court is directed to proceed with matter in accordance with law. [P. 96] A & B Date of hearing: 9.6.2003.                                                                                            …