P L D 1978 Peshawar 19 (PLP)

(2) On the other hand the purchase of Khasra No. 153 along with some other Khasra numbers by Fazal Ahmed on 23-1-68 was also pre-empted by one Muhammad Jan on 27-5-68. Muhammad Jan claimed superior right on the basis of contiguity and there Fazal Ahmed alleged that since he was the owner of Khasra Nos. 21 and 22 by purchase which are in dispute in this suit and which were contiguous to Khasra No. 153, he could therefore, defeat Muhammad Jan's right. On that ground the suit of Muhammad Jan was dismissed on 13-11-70. Muhammad Jan went up in appeal to the Court of the District Judge and the District Judge came to the conclusion that the suit of Muhammad Jan could not be dismissed till the suit of Abdul Ghani against Fazal Ahmad for possession of Khasra Nos. 21 and 22 by pre-emption had been finally decided. He, therefore, accepted the appeal, set aside the judgment and decree of the lower Court and remanded the case back on 22-3-71 to the lower Court directing him to keep the ease pending till the decision of the case of Abdul Ghani against Fazal Ahmad. It is a pity, however, that that case was not taken up to the High Court in revision or appeal. Now looking at the two cases I am of the opinion that the case of Muhammad Jan had to be decided first and not that of Abdul Ghani and the suit of Abdul Ghani has, therefore, to be stayed till the suit of A Muhammad Jan has been finally decided because the sale in the suit of Abdul Ghani had taken place earlier than the sale in the suit of Jan. Under the circumstances, the suit regarding the later sale which had been pre-empted had to be decided first. I, therefore, order that this revision petition should be kept pending till the decision of the suit filed by Muhammad Jan. (3) But since the District Judge has already passed an order that the suit of Muhammad Jan is to be kept pending till the decision of this case, under these circumstances both the suits will lie pending indefi nitely without any action being taken in it. I am, therefore, cons trained to exercise the revisional powers of this Court in the case of Muhammad Jan and, therefore, order that notices to be issued to the parties in that case for setting aside the order of the learned District Judge with respect to the stay of that suit. This sun motu revision petition should be registered and numbered in this Court and the parties summoned for a date to be fixed by the office. This case is to be kept pending till the decision of the case of Muhammad Jan."

2. In the context of the preliminary objection, following from the judg ment of the learned District Judge remanding the vase reads t " . . . . . It is, no doubt, true that the plaintiff-appellant has not pre empted the transaction embodied in mutation No. 2440 sanctioned on 23-12-67 but the fact remains that one Abdul Ghani has pre- empted this (that) sale and his suit has been stayed under section 29 of the N: W. F. P. Pre-emption Act. The file of that case has been requisitioned and it transpires therefrom that it is still pending and has not yet been decided. If Abdul Ghani succeeds in that suit the defendant-respondent will be deprived of the qualification of co-sharership. In this state of matters the defendant-respondent cannot claim to be co-sharer as the sale in his favour is subject to pre-emption suit which is yet to be decided. In the circumstances I am constrained to accept this appeal, set aside the judgment and decree of the learned Civil Judge and remand the case to him under Order XLI, rule 23-A, C. P. C. with the direction that he should first decide Suit No. 2/1 of 1968, entitled Abdul Ghani v. Fazal Ahmad and then decide this suit in the light of that decision. Parties have been directed to appear before the Civil Judge, Mansehra on 12-4-71."

3. Syed Rifaqat Ali Shah, learned counsel for the respondent maintains' that the order of remand being appealable under Order XLIII, rule 1 (u) C. P. C. which was not appealed from, therefore, it become final and the suo motu revision was thus incompetent.

4. The objection is to be examined besides other ground to be instantly. Discussed, section 13 of the Court Fees Act is relevant to the point which reads

13. If an appeal or plaint, which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the full amount of fee paid on the memorandum of appeal This view finds support from Lila v. Mohange and others (A I R 1931 All. 623), which reads as follows Ordinarily the High Court would not interfere if another convenient) remedy is open to an applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as al general proposition that the High Court has no power of interference at all or should not interfere where there is another remedy by way of a suit open to the applicant. Each case must be considered in its own merits and if the Court has acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interest of justice, there is no reason why High Court should drive the applicant to a more circuitous remedy by way of a separate suit. I t was held in Falah-ul-Momineen Trust v. V. P. Abdullah (P L D 1970 Kar. 179) The Legislature has in the Civil Procedure Code provided for all possible eventualities and to such matters which were not foreseen at that time, a provision like section 151, C. P. C. was enacted to empower the Courts to meet such an unforeseen eventuality. Apart from section 151, C. P. C. the Court has also inherent power to take all steps to execute its own mandates and orders as this power flows from the jurisdiction itself. The support for this view can be had from the following passage on page 136, Corpus Juris Secundum, Vol. 21: While a Court may be expressly granted the incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted Court has power to do all things that are reasonable necessary for the administration of ju1ico within the scope of jurisdiction, and for the enforcement of its judgment and mandates . This power has been judicially recognised and stated as au implied power following from the jurisdiction itself in the Interpretation of Statutes by Maxwell, 10th Edn., on p. 136: "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such Acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoque concessa essee videntur sine quibus jurisdictio explicari non potutt. Thus, an Act which empowered justices to require persons to take an oath as Special Constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise the jurisdiction could not be effectually exercised". Thus it cannot be doubted that the Court has inherent power to take such steps to have its process executed and in this context even though there is no specific direction either in rules 35, 95 and 98 of Order XXI, C. P. C. or rule 255 of the Sind Civil Courts Rules for police aid for getting the writ of ejectment executed, yet the Court can provide for such assistance."

3. For the aforegoing reasons, this revision petition is accepted with them direction that the case of Muhammad Jan v. Fazal Ahmad shall be decided before the case of Abdul Ghani v. Fazal Ahmad. S.A.H Orders accordingly.