1975 PLP 221 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑‑This petition arises out of the pre emption proceedings initiated by the petitioner. Pir Muhammad respondent purchased some land on 28‑7‑1967. The sale was sought to be pre‑empted by the petitioner who filed a suit on 22‑7‑1967. In the meantime, however, in order to improve his status and defeat the suit of prospective pre‑emptor, Pir Muhammad obtained in exchange from his brother Muhammad Sultan one marla of land in Khasra No. 399 by means of a registered deed, executed on 21‑7‑1967 on the very next day. i.e. 22‑7‑1967, the petitioner brought a suit for possession by pre‑emption It would thus be seen that this second suit for pre‑emption of the subsequent sale was brought five days prior to the institution of the suit seeking pre‑emption of the previous sale.

2. The three important issues, namely, as to whether the transaction was one of the sale given the colour of exchange, was bit by Martial Law Regulation No. 64, and whether having the plaintiff a superior right of pre emption, having been found against the petitioner, his suit was dismissed. The petitioner went in appeal, which was accepted by the Additional District Judge on the ground that the transaction of exchange was hit by Martial Law Regulation No‑

64. Feeling aggrieved, Pir Muhammad respondent preferred a second appeal before the High Court. The learned Judge reversed the findings of the lower Appellate Court that the transaction was hit by Martial Law Regulation No. 64 and instead of remanding the case to the Additional District Judge, who had not dealt with the other issues, proceeded himself to dispose them of under Order XLI, rule 24 read with section 103, C. P. C. and affirmed findings of the trial Court that it was not a transaction of sale but one of the sale, and that the plaintiff bad no superior right of pre‑emption. On these findings the appeal was accepted and the plaintiff's suit was dismissed with costs throughout, vide judgment dated 6‑5‑1974, from which leave to appeal is sought in this petition.

3. In support of the petition learned counsel contended before us, that by the short‑circuiting of procedure by the learned Judge of the High Court who instead of remanding the case, proceeded to dispose of the issues himself, the petitioner had been deprived of a valuable right of appeal. It was next contended that the finding of the learned Judge that the transaction was not hit by Martial Law Regulation No. 64, was based on misinterpretation of para. 25(4) of the aforesaid Regulation.

4. There is no substance in these contentions. The learned Judge of the High Court was under no obligation to make an order of remand and was fully competent to dispose of the issues left undetermined by the first Appellate Court. Learned counsel could not place before us any statutory provision or a judicial authority to the contrary effect. As regards the second point, on a careful reading of the statutory provision contained in para. 25(4) of the Martial Law Regulation No. 64, learned counsel had to concede that on the available evidence the requisite conditions of its application to the case of the respondents were not satisfied.

5. There is no force in this petition, which is dismissed. Leave refused.