1. - Heard the parties and perused the record. By way of this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the order dated 5.7.2008 of Additional District Judge No. 4, Jaipur City. Jaipur. in Civil Suit No. 36/2007. whereby respondents' application under Order 7, Rule 11 of the Code of Civil Procedure (hereafter referred to as 'the Code') had been allowed and the petitioner's suit had been dismissed on account of having no cause of action and also on account of it being against the provisions of law.

2. Briefly stated, facts of the case relevant for the purpose of disposal of this writ petition, are that the petitioner had flied a suit for pre-emption against the respondents stating therein that ¼th of house No. 520 situated in Shankar Gujar Gall, hokri Ramchandraji. was purchased by him from its owner by way of registered sale-deed on 13.3.1992 and since then he has been in possession thereof as the owner. The ¾th portion of the said house had been purchased by respondent Nos. 1 to 3 from the then owner also, by way of registered sale-deed on 7.8.1991, and since then they were in possession thereof. However, respondent Nos. 1 to 3 gifted the said ¾th portion of the house, to respondent No. 4.

3. The petitioner's contention was that after purchasing this ¾th portion, respondents No. 1 to 3 had orally agreed to sell it him for a sum of Rs. 5,70,000/- towards which the petitioner paid a sum of Rs. 1100/- as advance. Once the respondents orally agreed to sell their ¾th portion of the house in dispute, and accepted the advance amount, they could not have gifted it to respondent No. 4. By filing his suit, the petitioner had prayed for right of pre-emption and injunction and also sought cancellation of the gift-deed in favour of respondent No. 4.

4. Execution of any oral agreement or receipt of Rs. 1.100/- towards the sale consideration, was denied. It was argued that as per the provisions of Preemption Act, 1966 (hereafter referred to as 'the Act') the right of preemption was not available to the petitioner in case of gift and that no cause of action has arisen to him. The defendants (respondents) moved an application under Order 7, Rule 11 of the Code before the Trial Court and prayed for rejection of the plaint on these grounds.

5. This application was contested by the petitioner and the learned Trial Court, vide impugned order, allowed the application on the grounds that no cause of action arose in favour of the petitioner and that the suit was filed against the legal provisions of the Act. Allowing the defendants' application under Order 7, Rule 11 of the Code, learned Trial Court also passed decree of dismissal of suit. Said order has been assailed by the petitioner (plaintiff) by way of this writ petition.

6. During the arguments before this Court, learned Counsel for the respondents raised the issue of maintainability of this petition, stating that learned Trial Court had passed a decree of dismissal of suit for which right to appeal was available to the petitioner and that when appropriate remedy was available to him under the Code, he could not have Invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

7. Supporting the impugned order, my attention was also drawn by the learned Counsel for the respondents to the definition clause of the Act and it was submitted that admittedly the transfer to respondent No. 4 by respondent Nos. 1 to 3 alleged by the petitioner was neither a 'sale' nor 'transfer' as defined under the Act, as it was a gift and the provisions of the Act are not attracted in case of gift and, therefore, the learned Trial Court has rightly dismissed the Petitioner's suit at the preliminary stage on account of having no cause of action.

8. Heard and considered the arguments and perused the order impugned as also the legal provisions and the case-law cited at Bar.

9. Before proceeding further, it a