P L D 1984 Peshawar 54 (PLP)

FAZAL ELAHI KHAN, J.‑Sher Muhammad and four others aggrieved by the order dated 15‑6‑1982 of the learned District Judge, Abbottabad, setting aside the order 'of the learned Civil Judge, Abbottabad, passed under Order 1, rule 10 of the C. P. C. directing the plaintiffs/petitioners to implead Muhammad Din a, subsequent transferee of the property in the suit as a party have filed this petition to have the order declared as being with out lawful authority and of no legal effect. The brief facts of the case are that the petitioners are the plaintiffs in the suit instituted in the Court of Senior Civil Judge, Abbottabad, to enforce their right of pre‑emption arising out of the sale of the property in favour of Abdullah son of Kala (defendant) through registered sale -deed, dated 31‑10‑1978. In the written statement filed by the defendant it was pleaded that the suit of the plaintiffs was bad for non‑joinder of necessary parties and that be had been left with no interest in the property, the subject‑matter of the suit. However, no further details to elaborate these pleas, as required by the law of pleadings, were given.

3. After the close of the evidence and hearing the arguments of the learned counsel for the parties, the learned Civil Judge vide his order, dated 10‑12‑1981 directed the plaintiffs to implead Muhammad Din, sub sequent transferee, as defendant in the suit as it was not possible for the Court to pass an effective decree in the case in his absence. This order was challenged in Revision before the learned District Judge who by the im pugned judgment and order accepted the Sam,:, set aside the order referred to above and remitted the case back to the Senior Civil Judge for decision in accordance with law.

4. As no adequate remedy was available to the aggrieved plaintiffs/ petitioners they have come upto this Court for the quashment of the order 0f the learned District Judge on the grounds of its being illegal, without lawful authority and of no legal effect. 5, Qazi Ghulam Rauf learned counsel for the petitioners and Muhammad Rafiq Awan, the learned counsel for respondent No. 1 present and heard.

6. It is not disputed before us that the original sale was pre‑empted within the period of limitation and that transfer in favour of Muhammad Din by the original vendee was made before the institution of the present suit. However, it was argued by the learned counsel for the petitioners that the question of limitation which was made the basis for setting aside the order of the learned Civil Judge was premature. It was also urged that the decision given by the learned District Judge that subsequent transferee could not be impleaded as a party to the suit for pre‑emption after the expiry of the period of one y car of such transfer was against the a law laid down by the superior Courts. Reference was made to Sarwar Shah and another v. Mst. Nargis Bibi (P L D 1974 Azad J & K, 1), wherein his Lordship Justice Khawaja Muhammad Sharif, the then Chief Justice of High Court of A J 8t K in an identical case dealing with the proposition. held :‑ "Enforcement of right of pre‑emption arises in respect of the particular sale which furnishes a party with a definite cause of action and the party to such suit are those who are party to the sale, a subsequent transferee from the original vendee is neither directly concerned in the action nor he is affected through, and as regards the transfer from the original vendee the suit is governed by Article 120 of the Limitation Act. In the case reliance was placed on the reported judgment of a Divisional Bench in A I R 1939 All. 158."

7. The order in question was passed by the learned Civil Judge when after hearing the arguments of the learned counsel .for the parties and rightly too, that no effective and enforcible decree he formed his opinion , could be passed in the case. The power given to the Court to add a person to the suit under the aforementioned provision of law is primarily meant to facilitate the adjudication of all questions involved in the suit and to settle it effectively and completely in the same suit, so as to avoid unnecessary litigation and multiplicity of the suit.

8. Revisional jurisdiction is not to be exercised by the Court unless the conditions provided for under section 115 of the C. P. C. are fulfilled. It, B has nowhere been held by the learned District Judge in the impugned order that the learned Civil Judge had exercised the jurisdiction not ves ted in him by law or had failed to exercise jurisdiction or had acted in the exercise of the jurisdiction illegally or with material irregularity. No doubt, question of limitation has to be looked into while making an order for addition of a person to the suit. Yet in cases where such ques tion is a disputed one, the proper course to follow is to allow the person to be added to the suit subject to all valid and legal exceptions. It is, c therefore, evident that before exercising his revisional power under section 115 of the Code the learned District Judge, in the absence of the person to be added, sat in judgment over the question of limitation and mad it the, basis for his interference. The authorities relied upon by the learned District Judge in support of his conclusion are not applicable to the facts of the case.

9. In the circumstances, therefore, we are of the view for the reasons stated above that the learned District Judge illegally assumed and exer cised his revisional jurisdiction in the matter, consequently this writ petition is allowed. The impugned order of the District Judge is declared to be without lawful authority and of no legal effect. In consequence of) the above the learned Civil Judge is to proceed with the case in accordance with law and to give decision afresh on .all the pleas, including the plea of limitation, if raised by the added defendant. There shall be no order as to costs. . M. Y. H. Petition accepted.