2005 PLP 1706 (SCMR)

TANVIR AHMED KHAN, J.

Leave to appeal is sought against the judgment, dated 18-4-2001 of a learned Single Judge of the Lahore High Court, Lahore, whereby R.S.As. Nos.258 of 1982 and 210 of 1985 filed by the petitioners were dismissed. The facts briefly narrated for the disposal of these petitions are that land measuring 10 acres and 15 Marlas situated in Mauza Saidan Saain, Tehsil Depalpur, was sold by one Syed Asghar Ali Shah to Muhammad Ramzan, Muhammad Shaaban and Nausher, sons of Siraj Din, along with Dost Muhammad, Khushi Muhammad and Sakhi Muhammad, sons of Roshan Din, for a consideration of Rs.25,187 through Mutation No.69 dated 30-4-1967. Two suits to pre-empt this land were filed; one by Mst. Shamim Akhtar respondent, daughter of the vendor, and the other by Syed Ghulam Hassan Shah on 11-4-1968. The former impleaded all the vendees in her suit while the latter Syed Ghulam Hassan Shah, paternal-cousin of the vendor, impleaded the first set of the vendees in his suit. However, under the order of the learned trial Court dated 18-6-1968, the other vendees were also impleaded as parties by said Ghulam Hassan Shah. Both the above suits were consolidated on 28-9-1967. Issues were framed and the parties led their evidence. The learned Civil Judge 1st Class, Depalpur, through his judgment, dated 16-6-1979 accepted both the suits holding that both the pre-emptors have got equal right of pre-emption and decrees of pre-emption were, accordingly, awarded to them in equal shares. The present petitioners/vendees filed two appeals assailing the aforesaid judgment. The learned Additional District Judge, Sahiwal, through his judgment, dated 12-12-1981 dismissed the appeal preferred by the petitioners against Mst. Shamim Akhtar and allowed the one filed against the rival pre-emptor i.e. Syed Ghulam Hassan Shah. Three R.S.As. were filed against the above judgment of the First Appellate Court, R.S.A. No.210 of 1985 was filed by the successors-in -interest of the rival pre-emptor Ghulam Hassan Shah; R.S.A. No.211 of 1985 was filed by Mst. Shamim Akhtar who claimed that after the dismissal of suit of the rival pre-emptor she was entitled to the decree of the whole of the disputed land; and R.S.A. No.258 of 1982 was filed by the present petitioners. A learned Single Judge of the Lahore High Court, Lahore, through his judgment dated 18-4-2001 accepted R.S.A. No.210 of 1985 admitting the claim of the rival pre-emptor and consequently dismissed the other two above-referred R.S.As. The learned Judge in the concluding paragraph also observed that if the rival pre-emptors had not yet deposited the part of the sale price as directed by the trial Court, they were allowed 15 days time to do the needful. Hence, these petitions for leave to appeal by the petitioners/vendees. Learned counsel appearing for the petitioners has not taken exception to the decree of half of the estate passed in favour of Mst. Shamim Akhtar, daughter of the vendor. He has frankly stated that he is not in a position to take exception to her superior right. He has, however, argued that the legal heirs of the rival pre-emptor have got no right as their predecessor-in-interest Syed Ghulam Hassan Shah did not implead all the vendees at the first instance. On this basis he has stated that their suit merits dismissal as being for partial pre-emption and the subsequent impleadment was barred by time. We have considered the contentions raised above and have gone through the entire documents appended with these petitions. It is reflected from the perusal of the record that there were six vendees of the entire transaction; one set comprises of sons of Siraj Din namely Muhammad Ramzan, Muhammad Shaaban and Nausher while the other set consisted of the sons of Roshan Din namely Dost Muhammad, Khushi Muhammad and Sakhi Muhammad. The predecessor-in-interest of the respondents Syed Ghulam Hassan Shah filed a suit impleading one set of the vendees but under the orders of the trial Court, dated 18-6-1968 he impleaded the other three vendees. The petitioners did not assail this order before any forum, as such it is too late in the day to take exception to the same. The reliance of the petitioners on the case of Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 153 is not apt as the facts and circumstances of the above case are distinguishable from the case in hand. The learned Single Judge of Lahore High Court has dealt this aspect in the impugned judgment in the following manner:-- "It is further concluded that the remaining three vendees who were not earlier made as party, were subsequently, though arrayed as defendants, but beyond the period of limitation. Consequently, such impleadment would not cure the defect of partial pre-emption. I am afraid, this reasoning has no valid basis, because the appellants had filed an application for impleading three vendees as a party and had explained that they were not earlier impleaded due to clerical omission. This application was allowed by the learned trial Court. No revision against such order was filed by the respondents. It may be pertinent to state here that though, three vendees were not arrayed as defendants, but the appellants had challenged the whole of the land sold and for the total sale price. The omission of non-impleading the three vendees was clerical in nature. It is settled law that a person can always be impleaded as party at any stage of the suit." (Underlining is ours). The above resume demonstrates that it was an inadvertent omission on the part of the respondents for not impleading the second set of vendees at the initial stage as they were claiming the entire sale by offering total sale price. Such-like technical objection should not come in the way of substantial justice as this Court has held time and time that technical knock-out should sparingly be resorted to as procedures are meant just to foster the cause of justice and not to thwart the same. Resultantly, for what has been stated above, both the above petitions being without any merit are hereby dismissed and leave refused. M.H.IS-296/S Petition dismissed.