1979 PLP 455 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑The petitioners feel aggrieved by the order of a learned Single Judge of the Lahore High Court, dated 15‑5‑74 dismissing their civil revision arising out of proceeding in a pre‑emption suit in limine.

2. The respondents brought a suit for possession of land by pre‑emption against the petitioner's which was dismissed in default by the trial Court under Order IX, rule 8, C. P. C. on the 30th of September, 1968. It appears that immediately after the order of dismissal an application for restoration of the suit was moved the same day. It was unsuccessfully resisted by the petitioners and the suit was restored on 9‑9‑1969. On a revision filed by the petitioners against this order, the High Court remanded the case for a fresh decision after proper consideration‑ of the rebuttal evidence led by the petitioners who were defendants in the case on remand, the trial Court dismissed the application for restration of the suit, vide order dated 30‑5‑1973. This background of the case does not appear to be properly reflected in the order of the High Court from which leave to appeal is being sought. However, on a fresh appraisal of the evidence adduced by the parties and after hearing that learned counsel the learned Additional District Judge reversed the order of the trial Court, dated 30w5‑1973 and restored the suit vide order dated 8‑4‑1964. This appellate order was unsuccessfully challenged by the petitioners before the High Court giving rise to the, present petition.

3. In support of the petition, learned counsel contended before us that the proceedings being an off‑shoot of a pre‑emption suit were vulner able to technicalities, the Courts below should not have disposed of the matter on the usual consideration of equity that normally case must be decided on merits between the ‑parties. It was submitted that the Courts below had erred in ignoring the evidence of rebuttal available in the statements of three R. Ws, which had not received proper 'consideration. It was argued that if properly considered, it would have clearly established the fact that the respondents were deliberately resorting to dilatory tactics in order to gain time so as to be able to arrange Zar‑Panjum. In support of this learned counsel particularly drew our attention to statement of Abdur Rehman R. W. 1.

4. Having perused the judgment of the Additional District Judge, which was upheld by the High Court in exercise of its discretionary jurisdic tion we find that the evidence of rebuttal was properly considered and discussed. The promptitude with which the application for restoration of the suit was moved immediately after its dismissal in default supported by the evidence led by the respondents including the statement on oath of Agha Ali Ahmad, Advocate, went along way to show that it was not a case of deliberate prolongation of proceedings which even otherwise, would be, fraught with the grave risk of the defeat of the plaintiffs' claim. We are therefore, convinced that there is nothing wrong with the exercise of discre tionary jurisdiction by the learned Judge of the High Court in upholding the order of the Additional District Judge. The decision is consistent with the authorities on the point and no fault can be found with it justify ing the interference of this Court. The petition is, therefore dismissed. Petition dismissed.