2009 PLP 1911 (YLR)

MUHAMMAD ALAM KHAN, J.

Arguments heard and available record examined.

2. Facts of the case are that the petitioner brought a suit for pre-emption regarding the land fully detailed in the heading of the plaint against the respondent. The matter proceeded to trial and the learned trial Court after recording pro and contra evidence and considering the data available on record vide judgment and decree, dated 15-9-2007 dismissed the suit of the petitioner. The petitioner then filed Civil Appeal No.68 of 2007 which came up for hearing before Mrs. Sofya Waqar Khattak, learned Additional District Judge-V D.I. Khan who vide judgment and decree 10-4-2008 came to the conclusion that the judgment and decree impugned before her were not sustainable in the eyes of law and thus passed the following order:-- "In perspective of these discussions, it is concluded that appeal in hand merits success. Impugned judgment and decree except to the extent of finding regarding superiority of right stands set aside. Suit of appellant/ plaintiff stands decreed in the manner that appellant/plaintiff shall substitute respondent No.1 to the extent of share transferred to him vide impugned Mutation No.115 while plaintiff/pre-emptor is equally entitled along with respondents Nos. 2 to 4 to the extent of share transferred to them which shall be divided equally between plaintiff/appellant and respondents Nos. 2 to

4. Pre-emption amount has already been deposited while plaintiff/appellant shall deposit balance of sale price according to his share (as decreed today) within 30 days positively in trial Court. Record be returned and this file be consigned to record room after completion". Announced (Sd.) 10-4-2008 Mrs. Sofia Waqar Khattak Addl. Judge-V, D.I. Khan

3. After five months when copies of judgment were delivered to the petitioner, he came to know that he had been directed to deposit the pre-emption money within thirty days which period by that time had expired and thus the suit in a way had been abated. Thus, the petitioner moved an application to the trial Court for deposit of the pre-emption money which was rejected and the revision filed thereagainst also met the same fate, hence this writ petition.

4. It was submitted by the learned counsel for the petitioner that there was no specific direction mentioned in the impugned order of the Court regarding the determination of market value and the learned appellate Court ought to have determined the same and passed a clear order as to how much amount has to be deposited and thus the order of the appellate Court, while passing the impugned judgment and decree was ambiguous and non-speaking. It was also contended that when the decree of the trial Court was set aside in its entirety, the market value determined by the trial Court had also been set aside and the appellate Court should have determined the market value with specific direction for its deposit. It was submitted that the act of the Court should not prejudice a party. Secondly under section 25 of the N.-W.F.P. Pre-emption Act, 1987, no consequences for non-deposit of the pre-emption money has been specified and thus, the suit could not be dismissed. On this ground, reliance was placed on the cases of Muhammad Sanadi and 2 others v. Abdul Wali Shah (PLD 1979 Peshawar 17) and Muzaffar v. Ali Khan and 3 others (1989 CLC 2342).

5. Learned counsel for respondent on the other hand submitted that the direction of the Revisional Court for deposit of pre-emption money were quite legal and the petitioner having failed to comply the same, the instant writ petition is liable to be dismissed. Reliance was placed on Shujat Ali v. Muhammad Riasat and others PLD 2006 SC 140.

6. Before dilating upon facts and legal position involved in the case, suffice it to say that the learned' Revisional Court has not adverted to this important aspect of case incorporated in para.10 of its judgment wherein the impugned judgment and decree of the trial Court was set aside in its entirety except the superior right of pre-emption of the parties who were found equally entitled. The non-consideration of this aspect of the case has definitely resulted prejudice to the parties and under the provisions of Order XLI, Rule 31, C.P.C:, the Court has to formulate a moot question and give findings thereon which are not existing in the instant case.

7. Thus, in view of the above facts and circumstances of the case, we are constrained to accept the writ petition, set aside the impugned order of the learned Revisional Court, dated 27-10-2008 as against the express provision of law and declare the same to be without lawful authority and of no legal effect, and remit the lis back to the said Court for decision afresh after affording an opportunity of hearing to the parties or their learned counsel. Parties are directed to appear before the learned Additional District Judge-V D.I. Khan on 30-S-2009. As the main lis has been remanded, so C.M. No.89 of 2009 is dismissed as having become infructuous. H.B.T./128/P Case remanded.