1998 PLP 384 (SCMR)

AJMAL MIAN, ACTG. C.J.

This is a petition for leave to appeal against the judgment, dated 3-6-1996 passed by a learned Single Judge of the Lahore High Court in R.S.A. No.377 of 1980 treated as Civil Revision No.269(1) of 1996, filed by the respondent against the judgment, dated 23-1-1980 of the learned Additional District Judge, Rawalpindi, passed in Civil Appeal No.277 of 1978 of the petitioners, remanding the case to the trial Court, allowing the same by setting aside the above judgment for the following reasons:

"

3. I have considered the arguments addressed at the Bar and the case law on the subject. Admittedly the suit was filed under the provisions of Punjab Pre-emption Act, 1913 and has not been decreed in favour of the pre-emptor at any stage up till now. It is now well-settled a legal proposition that if a pre-emption suit filed under the Provisions of Punjab Pre-emption Act, 1913 not decreed up to 31-7-1986 no decree can be passed therein in favour of the pre-emptor, as he looses the actionable cause of action.

4. Arguments of the learned counsel for the petitioner, hence, has force, is accepted, and it is held that the suit is not maintainable as such the remand order is set aside and the pre-emption suit filed by the respondents is dismissed for the reason that no decree can be passed in their favour. Parties are left to bear their own costs".

2. The brief facts are that the petitioners' predecessor-in-interest, Mst. Raj Begum, filed a suit to pre-empt the sale of land measuring 11 Kanals 10 Marlas situated in the revenue estate of village Dhamali, Tehsil Kahuta. District Rawalpindi, which was effected through Mutation No.369 sanctioned on 10-8-1969. It appears that the above suit was resisted by the respondent. The same was dismissed by the trial Court on 20-1-1977 on the ground that the plaintiff did not have superior right. Against the aforesaid judgment /decree, the petitioners filed Civil Appeal No-277 of 1978, which was allowed by a judgment dated 23-1-1980. It was held that the plaintiff had the superior right. The case was remanded to the trial Court for recording of finding on Issues Nos.5 and

6. Against the aforementioned remand judgment, the respondent preferred above R.S.A., which was treated as a civil revision and disposed of by the impugned judgment in terms of the abovequoted portion thereof. The petitioners have, therefore, filed the present petition for leave to appeal.

3. In support of the above petition Maulvi Anwarul Haq, learner Advocate Supreme Curt for the petitioners, has invited our attention to page 36 of the paper book, which indicates that while the above matter was pending before the High Court, the learned Civil Judge, IIIrd Class, Kahuta, passed a pre-emption decree on 9-4-1980 in favour of the petitioners. He has, therefore, submitted that the learned Judge in Chambers proceeded on a wrong assumption that no decree was passed prior to 31-7-1986 and the ratio decidendi of the case of Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) is applicable.

4. The above contention seems to have some force. We are, therefore, inclined to grant leave to consider, as to whether in view of the above pre-emption decree dated 9-4-1980 in favour of the petitioners, the High Court has rightly non-suited the petitioners on the above ground. Leave is, accordingly, granted. A.A./M-53/SC Leave granted.