P L D 1977 Lahore 376 (PLP)

Raja Said Akbar and Maulvi Ehsanul Haq for Appellant. Muhammad Abdul Wahid for Respondent. Date of hearing : 20th January 1976. Kala, Allah Dad, Noor Ahmad. Masud Ahmad, Mst. Zenab and Sher Ahmad filed a suit for possession through pre-emption of the land in dispute situate in the area of village Chak Darya, Tehsil Jhelum. The suit was dismissed by the Senior Civil Judge on the 18th of June 1963 on the ground that the sale being of evacuee property was not pre-emptible. The appeal was also dismissed by the District Judge on the 29th of January 1964. They filed the second appeal which was accepted and the case was remanded to the trial Court for decision on merits. Allah Dad respondent filed a review petition alleging that as two of the appellants, namely, Kala and Allah Dad had died before the hearing of the appeal it had abated and, therefore, the decree of the High Court was a nullity. The review petition was accepted and the judgment and decree were set aside. The appeal has come up for regular hearing.

2. The vendor was the transferee of the property under the Displaced. Persons (Land Settlement) Act. The sale was effected on the 22nd of April 1962 when the property had ceased to be evacuee property and was in compensation pool. The appellants were non-suited on the ground that the sale being of a property which was once evacuee was not pre-emptible. In Sultan Muhammad v. Muhammad Siddique P L D 1973 S C 347 it has been hold that the "rights in land allotted to confirmed allottees under the Land Settlement Act and the Settlement Scheme is 'real property' and the rights conferred on them fall in the category of 'village immovable property'. The sale of such rights is pre-emptible under the Punjab Pre-emption Act." The view taken by the Courts below is, therefore, not sustainable.

3. Learned counsel for the respondent contended that the appeal is barred by law of limitation, because the appellants were only to deduct the time which they spent in obtaining the copies of the judgment and decree of the District Judge and by giving them this concession, the appeal was barred by 70 days. The District Judge decided the appeal on the 29th of January 1964. The appellants applied for the copies of the judgment and decree of the District Judge on the 7th of March 1964. The copies were ready on the 7th of April 1964. On these facts the appeal was barred by 70 days. Learned counsel for the appellants contended that the appel lants were entitled to the deduction of time not upto 7th of April 1964 when the copies were ready but upto 25th of April 1964 when they we delivered for the reason that they had not been given any date by the Copying Agency for their delivery. Learned counsel for the respondent ha not controverted this position. The appellants are, therefore, entitled t o.1 deduct the period upto 25th of April 1964 as held in Gul Muhammad v. Allah Ditta P L D 1960 Lah.

443. He next contended that under Order XLII, rule 2 of the Code of Civil Procedure (as amended by the Lahore High Court) unless the copy of the judgment of the trial Court is also filed along with the Memorandum of Appeal of the Second Appeal it is not competent and that, therefore, the time spent in getting the said copy should also be deducted under section 12 of the Limitation Act. Section 12 provides only for deduction of the time spent in getting the copies of the judgment and decree of the Appellate Court There is no scope for extending the provisions of section 12 to obtaining the copy of the judgment of the trial Court. (Refers Muhammad Afzal Khan v. Islamic Republic of Pakistan P L D 1968 Lah. 1205 and West Pakistan Province v. Nazir Ahmad P L D 1973 Lah. 403.

4. The appellants have applied under section 5 of the Limitation Act for the condonation of delay. On their behalf it is contended that the period spent in getting the copy of the judgment of the trial Court should be condoned for the reason that in order to prefer an appeal the appellants had to get the copy of the judgment, because otherwise the appeal would not have been competent, and that although section 12 was not applicable, yet on the principles on which it was based the appellants are reasonably justified to ask for this concession. Order XLI, rule 1 of the Code of Civil Procedure as was enacted and enforced in 1908 reads as follows "R. 1.-(I) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. (2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative 1 and such grounds shall be numbered consecutively." Order XLII, rule 1 which is applicable to Second Appeals provides "The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees." On the 19th of March 1926, rule 2 was added to Order XLII by the Lahore :High Court in which it was provided : "In addition to the copies specified in O. XLI, r. 1, the memorandum of appeal shall tie accompanied by a copy of, the judgment of the Court of first instance, unless the Appellate Court dispenses therewith." In Molu Mal v. Sri Ram and others A I R 1921 Lah. 73 it was held that according to the rules of the Lahore High Court in the case of second appeals the memorandum of appeal shall, in addition to the copies specified in Ordinance XLI rule 1, toe accompanied by a copy of the judgment of the Court of first instance. Where such copy is not produced within time, the presentation is not valid. The same view was taken in Naul and others v. Mule and others A I R 1926 Lah. 626 and Mathra and others v. Ram Singh and another A I R 1927 Lah.

747. It is clear that the require ment that certified copy of the judgment of the trial Court should be filed ,along with the memorandum of appeal in the High Court is mandatory and in the absence of the same (unless its filing is dispensed with) the filing of the .appeal would be defective and incompetent. The appellants had, therefore, sufficient ground for not filing the appeal till such time as the copy of the judgment of the trial Court was obtained. The next question which arises is whether the appeal should have been filed on the next day of obtaining the copy arid the delay up to that time should be condoned or that the entire period for obtaining the copy should be -condoned and deducted for computing the period of limitation. The appel lants obtained the copy of the judgment of the trial Court on the 11th of June 191514. If only the period up to that is deducted, the appeal, which was filed on the 7th of July 1964, would be time-barred. If the entire period spent in getting the copy of the judgment of the trial Court is condoned then the appeal is within time. In my view the entire period merits to be condoned. The Legislature had,-by an express provision contained in section 12 of the Limitation Act allowed the deduction of the period which is spent in getting -the copies of the judgment and decree appealed against. The framers of the Legislature had taken notice of the fact that under the existing law of proce dure it was imperative that every appeal should be accompanied by a copy of the decree appealed from and the judgment on which it was founded. So far as the second appeal was concerned, it was further provided that this rule was to ,apply also to appeals from appellate decrees which clearly meant that the Memorandum of Appeal to be preferred in the High Court was to be accom panied only by the copies of the judgment and decree of the first Appellate Court. It was only by rule 2 added to Order XLlI by the High Court of Lahore on the 19th of March 1926 that it was provided that "in addition to the copies specified in O. XLI, rule 1, the memorandum of appeal should be accompanied by a copy of the judgment of the Court of first instance, unless the Appellate Court dispenses therewith". Thus, if an appeal under Order XLI, rule I against the judgment and decree of the trial Court is not competent unless their copies are filed, a second appeal to the High Court is also not competent unless not only the copies of the judgment and decree of the first Appellate Court are filed but also is filed those of the trial Court. Since the Legislature was not cons cious of any such provision when section 12 of the Limitation Act was enacted it could not provide for the same. It, therefore, furnishes a valid basis t condone the entire period spent in getting the copies of the judgment and decree of the trial Court. In Muhammad Afzal v. Islamic Republic of Pakistan P L D 1968 Lah. 1205 it was held that " if once the principle is accepted that obtaining of the copy of trial Court's judgment is a 'sufficient cause' then we should allow all the time spent in it and not merely a portion of it, and for the period lapsing after obtaining of the copy no further explanation need be called for, if it is covered by giving allowance for the whole time involved in obtaining the copy". In Nakuleswar Sikdar v. Baron Chandra Chakravarty 1971 S C M R 54 1t was held : "The time for filing the petition for special leave begins to run from the date of the delivery of the judgment but even if a copy of the decree has to be filed it does not give a fresh lease of limitation but the time spent in obtaining the copy of the decree may be taken into consideration in condoning the delay, provided the petitioner has satisfactorily explained each; day's delay." The total days spent from the day the judgment was announced by the District Judge on the 29th of January 1964 to 7th of July 1964 when the appeal was filed is this Court, come to

160. If we deduct 97 days for getting: the copy of the judgment of the trial Court the remaining days are only 63 whereas the period of limitation is 90 days. The appeal shall, therefore, be within time after the delay is condoned. There are sufficient grounds for the condonation of the delay and it is condoned. The appeal is thus within time.

5. The contention of the learned counsel for the respondent that as Kala and Allah Dad plaintiff-appellants had died the appeal has abated to toto is untenable. The plaintiff in a pre-emption suit claims under their individual titles. The right to pre-empt is not a right which is jointly shared by one plain tiff with the other plaintiffs in a pre-emption suit. Everyone of the plaintiffs in a pre-emption suit, if otherwise entitled to pre-empt, has a right to pre-empt the whole property and this right is only controlled by a similar right) of other pre-emptors of equal degree, and consequently, in the case of various suits for pre-emption brought by persons having an equal right of pre emption, the property pre-empted is awarded to all the pre-emptors in equal shares. In the case of several persons having an equal right of pre-emption joining as plaintiff in one suit, everyone of the plaintiffs in his individual right is entitled to a decree in respect of entire property, and the mere fact of some of the plaintiffs withdrawing from the' suit does not and cannot affect the right of the remaining plaintiffs to a decree for the entire property. For the same reason the death of one or some of the several plaintiffs in a pre-emption suit, though their legal representatives are not brought upon the record, cannot affect the right of the surviving plaintiffs to claim a decree with respect to the entire property. The only effect of the omission to array a plaintiffs the legal representatives of the deceased plaintiff is that they are wiped out of the case, and thereafter the right of the surviving plaintiff o plaintiffs to pre-empt the entire property remains intact. Since the deceased-plaintiffs had been jointly snared with the other co-plaintiffs the omission to make his legal representatives as party within time destroys only their right. The rights of other plaintiffs remain intact. In Jalla v. Nauranga (1) it was held : "Tae right of each preemptor is a separate and independent right and the abatement of Kanda's appeal cannot possibly affect the rights of the other two appellants to get the relief sought by them in case they are otherwise found entitled to the same." The appeal has abated only in respect of Kala and Allah Dad appellants.

5. For the foregoing reasons the appeal abates so far as Kala and Allah Dad appellants are concerned and it succeeds as far as the other appellants are concerned. The judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court for fresh decision. There shall be no order as to costs. S. Q. Order accordingly.