1995 PLP 440 (SCMR)

NASIM HASAN SHAH, CJ.‑‑‑This is a petition for leave to appeal against the order of a learned Single Judge of the Lahore High Court, Multan Bench, Multan dated 28‑6‑1992 passed in R.SA. No. 41 of 1990.

2. The land in dispute was sold in favour of Ashiq Hussain etc. respondents Nos.3 to 7 on 11‑3‑1975. To pre‑empt the sale two suits were filed. One by Muhammad Shafi and others and the other by the petitioner herein (Rahim Bakhsh). The suit of Muhammad Shafi etc. was decreed on 10‑5‑1980 on the basis of being found to be an owner in the estate while the claim of the petitioner was rejected on the finding that he was not the owner in the estate, at the relevant time. Both the above suits, it may be mentioned, had been consolidated and were tired together.

3. Both the petitioner and the vendees filed appeals. The petitioner filed an appeal to challenge the dismissal of his suit while the vendees' appeal was filed to challenge the adverse decree passed against them. Both, the appeals were heard together and were dismissed by a common judgment on 12‑4‑1990 by the learned District Judge, Multan, Rahim Bakhsh petitioner herein then moved a second appeal in the High Court.

4. In the main question agitated in the High Court was that in so far as the petitioner had failed in the trial Court and no decree had been passed in his favour before 31‑7‑1986 whether any decree in his favour could now be passed? This question arose because of the rule laid down by this Court in the case of Malik Said Kamal Shah reported as PLD 1986 SC 360.

5. The High Court found that in view of the rule laid down by this Court in the above case was explained further in the case of "Sardar Ali v. Muhammad Ali" (PLD 1988 SC 287) and relying on the said judgment held that no decree in favour of the petitioner could be passed in the circumstances of the case. Hence this petition for leave to appeal. Ch. Khalilur Rehman, Advocate for the petitioner has contended before us that even though the suit of the petitioner was dismissed in the lower Courts yet the decree awarded to the rival pre‑emptor in their pre‑emption suit on 10‑5‑1980 could ensure for the benefit of the petitioner as well and, therefore, his case could still be heard on merits.

6. We are afraid that this plea cannot succeed. In the case of "Sardar Ali v. Muhammad Ali" (PLD 1988 SC 287) the questions which were posed for examination by this Court inter alia include the following question:‑‑ "Whether a plaintiff in a pre‑emption suit having failed in the trial forum and having remained unsuccessful in obtaining a decree in his favour even in appeal, revision or writ petition before 31st of July, 1986, can be granted a decree by any of the higher forums where his case was pending on that date including the Supreme Court." This Court answered the said question in the negative. This clearly indicates that if a plaintiff in a pre‑emption suit has failed in the trial forum and has remained unsuccessful in obtaining a decree in his favour even in appeal etc. before 1‑7‑1986 he cannot thereafter be granted a decree by any of the higher forum. In the present case Rahim Bakhsh petitioner was the plaintiff in the pre‑emption suit, which was instituted by him. He having failed in the trial forum and not succeeded in getting the said decree reversed in a higher forum before 31st July, 1986 cannot, therefore, be granted a decree by any of the higher forum thereafter. The order of the High Court is, therefore, unexceptionable and does not require any interference. This petition, therefore, fails and is dismissed hereby. A.A./R‑244/S Leave refused.