P L D 1982 Lahore 426 (PLP)

The facts giving rise to this regular second appeal are that the appellant, Falak Sher, sold certain land in favour of respondent No. 2, Chiragh Din. It was an oral sale which was followed by mutation. Respondent No. 1, Muhammad Rashid, filed a suit for possession of the said land through pre‑emptiom Thereafter, the appellant, who had sold the land, instituted a suit for declaration that there was no sale of land by him and that he con tinued to be its owner. The pre‑emption suit was still pending .when the declaratory suit was decreed. Thereupon, the plaint in the pre‑emption suit was amended so as to impleaded the appellant as a defendant in the suit. Then an additional issue was framed with a view to finding out the effect of the declaratory decree on the suit for pre‑emption and, after necessary inquiry, it was held that the declaratory decree was collusive and, therefore, it did not affect the pre‑emption suit. Ultimately, the pre‑emption suit was decreed. The judgment and decree passed in that suit were challenged by the appellant by means of an appeal which was dismissed by an Additional District Judge. He has, therefore, come up in second appeal to this Court.

2. It was contended by learned counsel for the appellant that the Court trying the pre‑emption suit had no jurisdiction to set at naught the declaratory decree passed by another Court.

3. The above plea of the learned counsel is a bated one inasmuch as it was not advanced before either of the two Courts below. However, since it raises a question of jurisdiction, I have decided to examine it on merits.

4. Learned counsel did not cite any authority for the proposition canvassed by him. I have also not come across any direct authority against that proposition. In this connection, I will, however, like to point out that some time it so happens that two rival suits for pre‑emption are filed before different Courts and no effort is made for their consolidation nor the plaintiff in one suit is impleaded as defendant in the other. If in one of the suits a decree is passed in favour of the plaintiff before the other suit is decided then, at the request of the plaintiff in the pending suit, the plaintiff in the decided suit is impleaded as defendant in the pending suit with a view to determining effect of the decree on the pending suit. It is generally urged that the decree thus obtained is collusive. The plea raised in this behalf is adjudicated upon by the Court dealing with the pending suit, and if the plea succeeds, the suit is decided on merits by ignoring the decree passed in 'the other suit. All this is amply illustrated by the authorities reported as Ghulam Tayyib v. Shahro Khan and others (1), Mehr Kamir v. Wali Muhammad and 5 others (2) and Mahmood Khan v. Khan Muhammad and 5 others (3). The position of the declaratory decree, granted to the appellant before me is, to my mind, not much different from the decree obtained in a pre‑emption suit during the pendency of a rival suit for pre‑emption. I am, therefore, of the view that declaratory decree in favour of the appellant, which was found to be collusive, could be overlooked by the Court trying the pre‑emption suit.

4. In some of the precedent cases it has been ruled that where after the filing of a pre‑emption suit the vendee re‑sells the land, involved in the suit, in favour of the vendor, it does not defeat the right of pre‑emption claimed in the suit. Some of these cases have been reported as Muzaffar Khan v. Muhammad Khan etc. (4), Imami v. Allah Diya and others (5), Sukha and others v. Arura Mal and another (6) and Pal Singh and another v. Jamun (7) and Muhammad Khan and another v. Zir Mir Khan and 2 others (8). Col lusion between the vendor and vendee in the instant case, which had resulted in the declaratory decree in question, was also aimed at giving back the disputed land to the vendor with a view to defeating the pre‑emption suit brought by the respondent. That decree is, therefore, on no better footing than the re‑sale of land, by vendee in favour of the vendor. The disputed decree would, therefore, not adversely affect the suit for pre emption.

5. Resultantly, I find no merit in the plea raised by learned counsel for the appellant that the Court seized of the pre‑emption suit had no jurisdic tion to hold that the declaratory decree which was collusively obtained by the appellant from another Court, was ineffective qua the suit for pre emption. (1) P L D 1962 B J .1 (2) P L D 1972 Lab. 287 (3) P L D 1973 Lab. 806 (4) 38 P L R 224 (5) 40 1 C 767 (6) P L R 1908 (7) 49 1 C 159 (8) 1981 C L C 129

6. Another argument advanced by learned counsel for the appellant was that in the pre‑emption suit proper court‑fee had not been paid within the period of limitation and, therefore, the plaint in that suit was liable to be rejected. It was, however, conceded by him that the deficiency in court‑fee was made good within the time allowed by the trial Court. No objection was raised before the learned appellate Court in regard to the payment of court‑fee. Learned counsel has also not pointed out the circumstances in which the trial Court had permitted the plaintiff to make good the deficiency. It is not disputed that in appropriate cases the Court can grant permission to make up deficiency in court‑fee even after the period of limitation has run out. 1 am, therefore, unable to hold that in the case in hand the plaint was liable to be rejected for non‑payment of requisite court‑fee in time. .

7. There is no force in this appeal. It is dismissed in limine. S.A. H. Appeal dismissed.