1989 PLP 4622 (MLD)

Sardar Ali v. Muhammad Ali P L D 1988 S C 287; Muhammad Shoib v. Member (Revenue) P L D 1988 S C 355; Mukhtiar Hussain and others v. Elahi Bakhsh and others 1989 C L C 747; Mst. Maqbool Begum etc. v. Gullan and others P L D 1982 S C 46 ref. Malik Iqbal Rasool for Petitioner. Khizar Hayat Khan Punian for Respondent, Date of hearing: 18th September, 1989. The relevant facts for the disposal of present appeal are that the respondent filed a suit to pre‑empt the sale in favour of the petitioner. Yet another suit was filed by one Naseem Ullah, Both the suits were consolidated and in view of provisions of Section 28 of the Punjab Pre‑emption Act, 1913, the rival pre‑emptors were impleaded as defendants in the other suit. The result was that Naseem Ullah became defendant No. 2 in the suit filed by the respondent. The trial Court framed issues, recorded respective evidence of the parties and after hearing the arguments proceeded to decree the suit vide judgment and decree dated 29‑2‑1988. The first decree was passed in favour of Naseem Ullah, the rival pre‑emptor. He was allowed time to deposit the pre‑emption amount till 9‑3‑1988 and en case of default, his suit was to stand dismissed. Thereafter, the respondent was to deposit the pre‑emption amount till 15‑3‑1988. The admitted position on record is that Naseem Ullah, rival pre‑emptor of the respondents neither deposited the pre‑emption amount nor challenged the decree. The result was that his suit stood dismissed on 9‑3‑1988. It was thereafter that respondent deposited the amount and became the sole decree holder.

2. The petitioner filed an appeal on 28‑3‑1988 against the judgment and decree of the trial Court but he did not implead Naseem Ullah, rival pre‑emptor as a respondent. The appeal was dismissed by the lower Appellate Court vide judgment and decree dated 16‑7‑1988 for failure of petitioner to implead said Naseem Ullah. Hence the present revision petition.

3. I have heard the learned counsel for parties. The learned counsel for the petitioner in support of the petition has argued that since the suit of rival pre- emptor stood dismissed on his failure to deposit the pre‑emption amount by 9‑3 1988, therefore, he was neither necessary nor proper party to the appeal filed by the petitioner on 28‑3‑1988. It is added that since the suit of respondent was decreed for the first time much after 31‑7‑1986, therefore, the decree is nullity in the eyes of law in view of the latest decision of Honourable Supreme Court in the cases of Sardar Ali v. Muhammad Ali (P L D 1988 S C 287) and Muhammad Shoib v. Member (Revenue) (P L D 1988 S C 355). It is concluded that since decree is nullity, therefore, this Court is competent to set aside the same exercising revisional jurisdiction. In this behalf reliance is placed on Mukhtiar Hussain and others v. Elahi Bakhsh and others (1989 C L C 747).

4. On the other hand learned counsel for the respondent has argued that Naseem Ullah, rival pre‑emptor, was impleaded as defendant No. 2 in the suit in view of the provisions of Section 28 of the Punjab Pre‑emption Act, 1913, therefore, he was a necessary party to the appeal. The petitioner's failure to implead hint as a respondent rendered his' appeal incompetent. The learned counsel in support of the arguments has referred to the case of Mst. Maqbool Begum etc. v. Gullan and others (P L D 1982 S C 46).

5. I have given my anxious consideration to the arguments and gone through the record. Now I take up the arguments of learned counsel for petitioner with reference to the counter‑arguments of learned counsel for the respondents. The argument that the moment rival pre‑emptor failed to deposit the pre‑emption amount in terms of the decree, he became unnecessary party. Naseem Ullah was impleaded only because he had, also, filed a suit to pre‑empt the sale. The moment his suit was dismissed for whatever reason, his interest in the result of appeal was reduced to zero. Thereafter, he is neither necessary nor proper party. The case of Mst. Maqbool Begum etc. relied on by the learned counsel for respondent is not relevant for the reason because the decree is neither joint nor indivisible. On the other hand decree in favour of respondent is exclusive and independent of the rights of said Naseem Ullah. Now the respondent is the sole decree‑holder. The lower appellate Court, therefore, committed illegality while holding that Naseem Ullah was still a necessary party and in his absence the appeal was rendered incompetent.

6. Now coming to the merits of the decree. The admitted position is that no decree was passed in favour of respondents by any Court before 31‑7‑1986 and decree for the first time passed on 29‑2‑1988 is nullity in view of the law declared by the Honourable Supreme Court in the cases of Sardar Ali and Muhammad Shoib. It is a case of total lack of jurisdiction and decree is absolutely void. therefore, it is a fit case to exercise revisional jurisdiction. This Court would refuse to perpetuate something, which is patently unjust and unlawful.

7. The upshot of this discussion is that this petition is allowed. The judgments and decrees of the Courts below are set aside and the suit of respondent is dismissed. However, there is no order as to costs. H.B.T./M‑1652/L