2005 PLP 207 (MLD)

Date of hearing: 10th November, 2004. This civil revision is directed against the judgment and decree dated 2‑2‑2000 passed by the learned Additional District Judge, Jhang, whereby while accepting the appeal, set aside the judgment and decree passed by the learned trial Court, remanded the matter back to the learned trail Court with direction to take proper legal steps regarding proper representation of the, minors (Vendees/defendants) strictly following the provisions contained in Order XXXII, C.P.C.

2. Briefly the facts relevant for, the disposal of this petition are that respondent No.5 field a suit for possession by way of pre‑emption in respect of the land fully detailed and described in the head note of the plaint. The defendants did not enter appearance and were proceeded ex parte. Respondent filed a petition for impleadment of rival pre‑emptor. On 10‑12‑1998, the learned trial Court on examining the record observed that a decree for possession through pre‑emption has already been passed in case titled Riaz v. Sarfraz and others on 30‑9‑1997, hence no cause of action is left, directing rejection of plaint under the provisions of Order VII, rule 11, C.P.C. It was challenged in appeal. A learned Additional District Judge allowed the appeal and remitted the matter to the Court of first instance.

3. The learned counsel for the petitioner argued that the impugned judgment of the learned Additional District Judge in remitting the matter to the learned trial Court is not sustainable in law, on the ground that decree of pre‑emption in respect of the land in suit, in his favour remains in the field. He further argued that the only remedy available to the petitioner is an application under section 12(2), C.P.C. He relies on Muhammad Kazim and another v. Province of Balochistan and 2 others (2000 SCMR 230) and Mst. Iqbal Begum and another v. Maqbool‑ur Rehman (PLD 1991 SC 407).

4. Conversely, the learned counsel for the respondents submits, that the decree in favour of rival pre‑emptor cannot be challenged under section 12(2), C.P.C. hence the only course open to him was an application filed by him under Order‑1, rule 10, C.P.C. which remained un‑decided.

5. I have heard the learned counsel for the parties and perused the judgment impugned herein.

6. The suit‑land was sold on 21‑6‑1997. It was pre‑empted by respondent, Pehlwan. Notices were issued to the vendees, who were minors and sued through guardian. Nobody entered appearance in spite of service. Ex parte proceedings were initiated without adverting to the provisions contained under Order XXXII, rule 3, C.P.C.

7. An application under Order 1, rule 10 read with Order VI, rule 17, C.P.C. was filed by Pehlwar, for impleadment of revision petitioner, Riaz, on the ground that he has secured consent decree for possession through pre‑emption in respect of the suit‑land on 30‑9‑1997, in suit filed by him on 25‑9‑1997. The learned trial Court without disposing of this application rejected the plaint for not disclosing a cause of action.

8. Whether the remedy of the respondent pre‑emptor lay in approaching the Court in an application under section 12(2), C.P.C. It may have been available, if validity of decree has been challenged on the plea of fraud, misrepresentation or want of jurisdiction. In the absence of the aforementioned pre‑requisites contained in section 12(2), C.P.C., such a petition is not maintainable. The precedents cited by the learned counsel for the petitioner qualify to the facts and law discussed therein.

9. Examining this case with reference to an example: Say, a pre emptor has instituted a suit which is entrusted to one Court. A rival pr emptor instituted another suit which is marked to another, Court. The vendee is served in one suit. He confessed the suit resulting into the decree. When his service is effected in another suit, he brings to the Court's notice factum of decree passed in the other suit. What should be the resolution of such a situation. Section 28 of the Repealed Pre emption Act of 1913, catered for such a situation. Effect of section 28; Punjab Pre‑emption Act, 1913, was that when different suits were filed in respect of same sale and a plaintiff was not joined in such a suit, decree obtained was not binding on such plaintiff. Reference can be had to Noor‑ud‑Din v. Siraj‑ud‑Din (1991 SCMR 762); Ghulam Tayyab v. Shahro Khan and others (PLD 1962 (W.P.) B.J 1); Muhammad Akram Khan v. Mst. Kaniz Fatima Bibi and others (PLD 1952 Lah. 489) and Mehmood Khan v. Khan Muhammad and 5 others (PLD 1973 Lah. 806).

10. Pre‑emption Act, 1991 does not contain a provision like section

28. However, section 32 provides that matters ancillary or akin to the provision of Act which have not been specifically covered under any provision thereof shall be decided according to Shariah. Section 9 of the Pre‑emption Act, 1991 provide distribution of the property where more than one person are equally entitled. Reliance can be placed on 20 Punjab Record 1881, where two different set of pre‑emptors in two different suits were granted decree in equal share. Shariah does not debar a person from his right available to him on account of any technicality. Even in absence of section 28 in the new Act, section 9 read with section 32 of the Act, 1991 do keep the door open for a pre‑emptor, not joined in the suit in which decree is passed, to claim that the decree so passed is not binding on him. The pre‑emption is a right of substitution. The decree‑holder's right is nothing more than stepping into the shoes of the vendee, who is conferred right through decree of the Court. He can for all purposes be impleaded as party to the proceedings and the suit will be decided between rival pre‑emptors, on the basis of their qualification inter se. It is settled principle of law that a person cannot be left remedy less. On the anology of section 28 of the Repealed Pre‑emption Act, the petitioner decree‑holder was to be impleaded as defendant in the rival suit.

11. For what has been discussed above, the judgment passed by the learned Additional District Judge is un‑exceptionable and calls for no interference. Resultantly, this civil revision, is without force and, is, thus, dismissed with no order as to costs. M.I./R‑102/L Revision dismissed.