2003 SCMR 776 (PLP)

TANVIR AHMED KHAN, J.

Leave to, appeal is sought against the judgment dated 22-5-2001 whereby a learned Single Judge of the Lahore High Court, Multan Bench, Multan, accepted R.S.A. No.592 of 1976 filed by the respondents setting aside the judgment dated 12-5-1976 of the learned District Judge, Dera Ghazi Khan, and restored the dismissal of the suit as determined by the Senior Civil Judge, Dera Ghazi Khan, vide his judgment dated 29-3-1974. The facts briefly stated are that the petitioners filed a suit for possession through pre-emption of land measuring 236 Kanals, 19 Marlas on the basis of superior right. The learned trial Court dismissed the above suit vide its judgment dated 29-3-1974. An appeal was filed by the petitioners assailing the Judgment of the trial Court and the learned First Appellate Court vide its order dated 24-3-1976 allowed the petitioners to make up the deficiency in court-fee as also to file an amended plaint as well as amended memo. of appeal. Subsequent thereto, vide judgment and decree, dated 12-5-1976 the appeal was accepted holding that the right of pre-emption was not lost even if the pre-emptors joined with them a stranger having no right as the latter 's name could be struck off at any stage under Order 1, rule 10, C-P.C. This judgment was challenged by the respondents and a learned Single Judge of the Lahore High Court through the impugned judgment,. set aside the determination of the First Appellate Court by holding as under:-- "It is settled law that the stranger/plaintiffs can withdraw from the suit at any stage but it is also incumbent upon the other plaintiff to come forward and claim the share being abandoned by stranger and also to offer their share of the price as well. If such conduct is not shown then certainly the share left by deleted plaintiffs would remain in vacuum and the other plaintiffs without specific claim could not benefit the same. Resultantly the suit would become one of partial pre-emption as has happened in this case." Hence this petition for leave to appeal. Learned counsel for the petitioners has argued that joining of a stranger in a suit for pre-emption is a procedural defect which could be cured at any time but the Courts below under Order 1, rule 10, C.P.C. with or without any application made in this behalf. He has further argued that the principle of sinker as applicable in the case of a vendee would not be attracted to a pre-emptor. Reliance has been placed in this respect on the case of Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC

59. We have noticed that a vendee/tenant loses his superior right on the basis of his tenancy over the entire property by associating a stranger in the sale-deed, then why this principle should not be made applicable to the pre-emptors whose right was some time considered piratical by associating a person having no right. Leave. to appeal is granted to consider inter alia the above contentions raised by -the learned counsel. Status quo with regard to possession of the property in dispute shall be maintained till the disposal of the appeal emanating out of this petition. Leave granted.