1992 PLP 14 (MLD)

Syed Ournain Hussain plaintiff/petitioner herein, sued Muhammad Halim Shah defendant/respondent herein, for possession through pre-emption of the suit land measuring 1 kanal 19 marlas, sold vide Mutation No.392 attested on 28-7-1981, on the ground of participation in immunities and appendages such as right of way and right to discharge water and also ownership of contiguous property. Notices according to law were issued to defendant/respondent but he did not appear and was proceeded against ex parte. In consequence the learned trial Court recorded the statement of Patwari Halqa Ghulam Hassan as P.W.1 and Syed Qurnain Hussain plaintiff/petitioner as P.W.2 on 3-1-1983. The learned trial Court on the same day appointed Mr. Shah Alam Gilani Advocate as local commissioner for the determination of the easement right of the plaintiff/petitioner as alleged by him in his plaint. The report of the commissioner dated 7-1-1983 is on the file. Since superior right of pre-emption of the plaintiff/petitioner was proved from the statement of the Patwari Halqa and the report of the local commissioner, the learned trial Judge vide his judgment and decree dated 27-2-1983 passed ex parte decree for possession through pre emption of the suit land in favour of the plaintiff/petitioner against the defendant/respondent in lieu of Rs.8,

233. The defendant/respondent applied for setting aside the ex parte decree referred to above which was accepted and the defendant/respondent was allowed to file written statement which he did. In the light of the pleadings of the parties necessary issues in the case were framed and after recording evidence of the plaintiff/petitioner it was brought to the notice of the Court that in view of the repeal of the original Pre-emption Act, substituted by N.-W.F.P Pre-emption Act, 1987 the suit was liable to be dismissed under section 13 read with section 35(3) of the new Pre-emption Act. The learned trial Judge vide his judgment and decree dated 9-7-1987 dismissed the suit of the plaintiff/petitioner. However, in appeal against it the matter was remitted back to him for decision afresh on merits. After completion of the evidence of the parties the learned trial Judge vide his judgment and decree dated 19-7-1988 decreed the suit of the plaintiff/petitioner as prayed for by him. This time the defendant/respondent preferred appeal to the learned District Judge, Kohat who vide his judgment and decree dated 19-1-1989 accepted the same, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff/petitioner relying on the judgments of the august Supreme Court in the famous Sardar Ali's case reported as (PLD 1988 Supreme Court 287) and the case reported as (PLD 1988 Supreme Court 701). Hence the instant revision petition.

2. I have heard Mr. Abdus Samad Khan Advocate for the plaintiff/petitioner, Mian Shakirullah Jan Advocate for the defendant/respondent and have perused the record of the case with their assistance.

3. It is by now well settled law that if the plaintiff/pre-emptor in a suit for I possession has not succeeded in obtaining a decree before the target date 31-7-1986 declared in Said Kamal Shah's case reported as (PLD 1986 Supreme Court 360) no decree can be passed in his favour thereafter by any forum from the stage of trial Court till the Supreme Court. The august Supreme Court for the guidance of the subordinate Courts, formulated seven questions in their judgment of Sardar Ali's case and after elaborate discussion answered those questions in paragraph 64 of the judgment. For the decision of the controversy in the case in hand questions Nos.4, 5, 6 and 7 are relevant and they are being reproduced below for convenience: -- QUESTIONS 4.5.6 and 7: "

4. Whether a plaintiff having obtained a pre-emption decree in the trial forum before 31-7-1986 and challenge to such a decree was pending before the Supreme Court or a lower forum in appeal, revision or writ petition, can (the decree-holder) be non-suited on the ground that the relevant law ceased to have effect on 31st July, 1986.

5. Whether a plaintiff having failed in the trial forum had, in appeal or other proceedings in a higher forum, succeeded in obtaining a decree before 31st July, 1986, can be non-suited in the still higher forum including the Supreme Court, on the ground that the relevant law had ceased to have effect on 31st July, 1986.

6. Whether a plaintiff having obtained a decree for pre-emption in the trial forum lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986, and seek 4,s restoration.

7. Whether a plaintiff/having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact whether the matter is pending before the trial or any higher forum."

4. Questions Nos.4 and 5 were answered in the negative while questions Nos.6 and 7 were answered in the affirmative. It was added that the questions formulated and answered would resolve most of the controversy but if a different question crops up subsequently or any new situation arises in any particular case the same would be resolved by the forum concerned in accordance with the principles discussed in the said judgment.

5. The controversy in the case in hand is not directly covered by the questions formulated in the judgment of Sardar Ali's case but can be resolved by referring to the questions Nos.4 to 7 and the answers given thereto. As discussed in the earlier part of this judgment an ex pane decree for possession through pre-emption was passed in favour of the pre-emptor/petitioner herein on 27-2-1983, much earlier to 31-7-1986 the target date in Said Kamal Shah's case and also prior to the promulgation of the new Pre-emption Act, 1987. Question which has to be resolved is whether the aforesaid ex parte decree should be considered at par with the pre-emption decrees mentioned in the questions Nos.4 to 7 or the same can be excluded from the purview of the decrees, solely on the ground that the same is passed ex parte. Decree is defined in subsection (2) of section 2 of the Civil Procedure Code which is to the following effect: -- "'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint (the determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI) but shall not include-- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default."

6. The ex parte decrees are passed under Order IX, rule 6, sub-rule (1)(a) of C.P.C. which provide that if it is proved that the summons was duly served, the Court may proceed ex parte and pass decree without recording evidence. However, in the instant case as a matter of abundant precaution and keeping in view the directions of the superior Courts the learned trial Judge passed the ex parte decree after recording evidence and appointing the local commissioner for local investigation. Order IX, rule 13 of C.P.C. comes to the rescue of the defendants for setting aside the ex parte decree on proof of certain circumstances. Orders XX to XXVI, relate to the drawing of decree-sheet and the essential contents thereof. Order XX, which describes the procedure for execution of decree, makes no distinction between decrees passed ex parte and those passed after contest and the executing Courts have been made bound to execute them in the manner they execute decree after contest. Even an appeal is competent against ex parte decree under section 96 of the Civil Procedure Code if the 8 judgment-debtor wants to assail it on the material already on record and does not stand in the need of filing written statement or evidence in rebuttal of the evidence of the opposite side. The aforementioned statutory provisions of law leave no room for doubt that there is no difference whatsoever between the decrees passed ex parte and those passed after contest and the practical effect of both of them in pre-emption case is the substitution of the plaintiff/pre-emptor for the defendant/vendee, so far as the title of the purchased property is concerned. On the touchstone of the answers given to questions 4 to 7 in Sardar Ali's case, the plaintiff/pre-emptor who had obtained a pre-emption decree prior to 31-7-1986 either in the trial Court or at the appellate stage cannot be non- suited even if the decree is set aside for one reason or the other in the higher forum and the suit is remitted back to the trial Court for proceedings afresh. Since the decree passed ex parte in the present litigation on 27-2-1983 is, for all intents and purposes, a decree under the provisions of the Civil procedure Code, it cannot be treated differently than the decrees mentioned in questions 4 to

7. Thus, on the principle discussed in the judgment of Sardar Ali's case it is held that the plaintiff/pre-emptor had once obtained a decree for pre-emption prior to 31-7-1986 and, therefore, the judgment of Said Kamal Shah's case of the Shariat Appellate Bench of the Supreme Court followed by Sardar Ali's case and subsequent numerous judgments of the Supreme Court do not stand in the way of the passing of the pre-emption decree in favour of the plaintiff/pre-emptor, if otherwise he is entitled thereto on the merits of the case.

7. Since the appellate Court has not given its decision on the merits of the case, the matter has to be remitted to it for decision of the appeal on merits. Accordingly on the acceptance of the instant revision petition, the judgment and decree of the appellate Court dated 19-1-1989 is set aside and the appeal is remanded back to the District Judge, Kohat, for decision on merits. No order as to costs. AA./1257/P Case remanded