P L D 1993 Lahore 910 (PLP)

This civil revision was by the Plaintiff in a pre-emption suit. Suit was decreed in his favour on 12-2-1992. In appeal by the defendant to the suit, decree passed by the trial Court was upset on the sole ground that an ex parte decree earlier passed in the pre-emption suit on 2-12-1984 shall not avail for making of a fresh decree in the pre-emption suit on or after A-7-1986, the target date fixed in the case of Sardar Ali. Brief facts of the case are: Sona owned I Kanal, 3 Marlas of land at Mauza Dullewala of Tehsil Kallurkot in District Bhakkar. By Mutation No.353 sanctioned on 26-11-1981, he sold above piece of land to Muhammad Shaft respondent. Plaintiff as son of the vendor claimed pre-emption in respect of the above sale. He asserted that the land was sold for Rs.1,M only and the same was its market value. Pre-emption suit was instituted on 25-11-1982, in the Civil Court at Bhakkar. Since the defendant did not appear, he was proceeded against ex parte. On the strength of ex parte proof, the trial Court decreed the suit ex parte in favour of the pre-emptor on 2-12-1984 subject to payment of Rs. 1,150 payable to the respondent by a specified date. On 31-3-1,986, respondent applied for setting aside of the ex parte decree against him. On 16-12-1987, ex parte decree was set aside, subject to payment of Rs.1,000 as costs to the plaintiff. Once again, the pre-emption suit was decreed on merits un 12-2-1992 in favour of the pre-emptor upon payment of Rs.1,390 as the sale price of the land to the respondent. The decretal amount was deposited in time. Respondent preferred an appeal. Lower appellate Court set aside the decree passed by the trial Court on 21-3-1993 and dismissed the pre emption suit by observing that fresh decree in the pre-emption suit could not be passed on or after 31-7-1986 and earlier ex parte decree was of no avail in this behalf. In taking this view, the lower appellate Court had relied upon my decision in Sajjad Hussain and 4 others v. Mehrban and 5 others 1989 CLC 1727,. in preference to, the judgment of Peshawar High Court reported in 1991 MLD, 2282. Regretfully for the lower appellate Court my view in the above case was not accepted by the Supreme Court. Against the judgment and decree allowing the appeal and dismissing the pre-emption suit on the above score, a revision was filed in this Court. It was admitted by me on 11-7-1993 and has come up for final hearing today in presence of the learned counsel for the parties. At the hearing, learned counsel for the petitioner referred to three cases I from the Supreme -Court reported in 1992 SCMR 445, 1991 SCMR 1328, 1992 SCMR 2117 to contend that there was no difference between a decree passed on contest and a decree passed ex parte because both were decrees as defined in section 2(2) of Civil Procedure Code, 1908, and therefore, the Rule in Sardar Ali's case placing a prohibition for making of a fresh decree in the pre-emption suit on or after k-7-1986 was inapplicable. Learned counsel for the respondent merely referred to my above decision and did not add anything further to his arguments. The view taken by the Supreme- Court in the above precedents favoured the contention advanced by learned counsel for the petitioner and fully covered it. There was no dispute that the pre-emption suit was decreed ex parte on 2-12-1984. Upon this view, there was no bar for trial of the pre-emption suit on merits and passing of a decree in it in accordance. with law. Therefore, this civil revision deserves to succeed. Consequently, it is allowed and the impugned judgment and decree passed in appeal by the lower appellate Court are set aside and the case is remanded to the lower appellate Court for rehearing and decision afresh of the appeal on merits in accordance with law. There shall be no order as to costs of proceedings in this Court. Records be returned to the Court below. Parties shall appear before it on 31-10-1993. AA./479-A/L Case remanded.