1989 PLP 324 (CLC)

‑‑‑Ss. 4 & 15‑‑Limitation Act (IX of 1908), Art.181‑‑Pre‑e mption suit decreed on ground that plaintiff had a superior right as an heir of vendor as compared to vendee's right as co‑sharer and tenant of land‑‑Appellate Court upheld Trial Court's finding about superior right vesting in plaintiff and its decree with conclusion that vendee was not a tenant but actually a co‑sharer of land‑‑Revision filed by petitioner about 3‑3/4 years after passing of appellate decree and no explanation given for such an inordinate delay‑‑Revision petition was also hit by Article 181 of Limitation Act, 1908‑‑Case of petitioner also hit by judgment of Supreme Court reported in P L D 1986 SC 360, whereby right which had already been successfully exercised by plaintiff in this case came to be annulled and revision petition if brought soon after judgment of Appellate Court could be decided upon merit much before crucial date 31‑7‑1986 in accordance with the then existing law‑‑Vendee's tenancy rights since struck down by the Supreme judgment‑‑Interference declined by High Court: Islam Ali Qureshi for Petitioner. Pre‑emption suit brought by the respondent in 1981 with regard to agricultural land, basing his superior right on the grounds of being an heir (real brother) of the vendor and also a co‑sharer in the suit‑land; was contested by the petitioner by not merely traversing his claim but also setting up a right in himself ‑as a tenant of the land. The suit was tried and decreed by the trial Court on 11‑11‑1984 in favour of the plaintiff‑respondent with the finding that his right as an heir of the vendor is superior to that of the vendee' s right as co‑sharer and tenant of the land.

2. Appeal thereagainst filed by the vendee‑petitioner was heard by the learned District Judge and dismissed on‑29‑1‑1985 by affirming the tri6l Court's finding about the superior right vesting in the plaintiff and upholding its decree with the conclusion that the vendee defendant is not a tenant but actually a co‑sharer of the land.

3. Revisional jurisdiction of this Court has been invoked by the vendee‑defendant now, on 22‑10‑1988, about 3‑3/4 years after the passing of the appellate decree, on the basis of, copies secured in April, 1985. He seems to have in the meanwhile reconciled with the A fate of this litigation inasmuch as there is no explanation even attempted to be given for this inordinately long delay and inaction. In addition, this revision‑petition gets hit by the residuary Article 181 of the Limitation Act whereby it is rendered liable to be rejected on the ground of laches and in the minimum becomes an unfit case for interference in exercise of discretionary jurisdiction of this Court lest a closed chapter gets reopened on account merely of the passive attitude and inaction of the petitioner for a period of 11 years preceding the crucial date 31‑7‑1986 fixed in the case of Malik Said Kamal Shah, reported as P L D 1986 SC 360, wherein the right which had already been successfully exercised by the plaintiff in this case, came to be annulled. A revision‑petition as the present, if brought soon after'the appellate judgment may well have been decided upon merits much before 31‑7‑1986 in accordance with the then existing law and no capital may be allowed to be made by the vendee‑defendant . of his own inaction in the meanwhile.

4. There is yet another difficulty in the way of success of this proceedings, namely, that the only defence taken in the written statement happens to be the vendee's tenancy‑right which has since been struck down in the above‑cited case. The use of a right as a defence‑plea would not be any different from asserting it as a ground of claim inasmuch as in either case it happens to in fact be exercised, in one case as a weapon of defence and in the other as the one of offence and if it may not be available to be used in one form it B would be equally inavailable to be used in even the other because with the losing of its very entity and existence on account of being contrary to the injunctions of Islam, the right on the basis of tenancy relied upon by the petitioner has to be taken as incapable of being resurrected for the purpose of use even as a defence to any suit. Such a plea cannot be effectuated for being used for the first time after 31‑7‑1986, not even as a defence to a claim for pre‑emption brought on an appropriate ground.

5. Upon either view, the decree passed and upheld below in favour of the respondent‑plaintiff does not now call for interference and no case exists at all for exercise of revisional jurisdiction. Hence, this revision‑petition is dismissed in limine. M.Y.H/M‑985/L Petition dismissed.