1991 PLP 763 (SCMR)

Malik A. Jaffar, Muhammad Ayub Bukhari, Advocates Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants. Sh. M. Akram for Respondent No.l (by Special permission). Nemo for Respondent No.2. Date of hearing: 6th November, 1990. ABDUL QADEER CHAUDHRY, J.‑‑ This appeal by the leave of the Court is directed against the judgment dated 28‑4‑1981 passed by the High Court.

2. Leave was granted to consider the, contention that the trial Court could not have passed a decree in favour of respondent No.1 in view of provisions of S.28 of the Punjab Pre‑emption Act.

3. The facts, in brief, are that Muhammad Akbar Khan sold the land to Muhammad Aslam. Noor Alam, predecessor‑in‑interest of the present appellants filed a suit for possession of the suit land through pre‑emption against Muhammad Aslam on 25‑4‑

67. The said Noor Alam deposited Zar‑e‑Panjam in the case. The respondent No.2 did not enter appearance as a result of which the suit of Noor Alam was decreed ex parte in his favour on 5‑7‑

67. Noor Alam way ordered to deposit the remaining decretal amount in the Court by 2nd September, 1967. According to the appellants, the parties had entered into a compromise outside the Court and Noor Alam paid the decretal amount to the special attorney of respondent No.2. In respect of the same suit land and against the same sale, respondent No.l also fled a suit for possession through pre emption on 22‑4‑1967. 1n this suit, Noor Alam was not arrayed as a party but on the pointation of Muhammad Aslam, respondent Noor Alam was also impleaded as a party. The respondent No.1 pleaded that the decree obtained by the said Noor Alam, the predecessor‑in‑interest was the result of collusion between him and the respondent. The learned trial Judge by means of judgment dated 11‑10‑76 decreed the suit of the respondent No.l holding that the terms of the decree dated 5‑7‑67 passed in favour of Noor Alam deceased do not fully comply with. The decree passed in favour of the respondent No.i was challenged in appeal which was dismissed by the Additional District Judge on 21‑3‑1981. The High Court also dismissed the second appeal.

4. The admitted position is that Muhammad Aslam is the son‑in‑law of Noor Alam. The decree was passed ex parte. The decretal amount was not deposited in the Court as directed by the trial Court. Muhammad Aslam, vendee, was admittedly in England on the day of transaction. The alleged attorney had never appeared before the Court and the suit for pre‑emption was pending in the Court against the vendee. In view of this fact, all the Courts have come to the conclusion that the decree was collusive and this finding of fact was not interfered with by the High Court. Section 28 of the Punjab Pre‑emption Act contemplates that:‑‑ "When more suits than one arising out of the same sale or foreclosure are pending the plaintiff in each suit shall be joined as defendant in each of the other suits and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right." The effect of per‑emptory provisions of Section 28 is that when different suits are instituted about the same sale and a plaintiff is not joined in one of such suits and the decree is obtained then that decree is not binding on a plaintiff who had not been joined in such suit. The respondent No.l instituted the suit on 22‑4‑1967 whereas Noor Alam had instituted the suit on 25‑4‑1967. In spite of the fact that the respondent No.l was earlier in time Noor Alam did not make any application to get the respondent No.1 impleaded as a defendant in his suit. The decree was obtained by Noor Alam without any intimation to respondent No.l. When after the passing of the decree, this fact was brought to the notice of the respondent No.1, he impleaded Noor Alam in the suit therefore the respondent No.l could not be held responsible for not complying with the provisions of section

5. Another aspect of the case is that according to the appellant the parties had entered into a compromise outside the Court and the decretal amount had been paid by Noor Alam. This fact was not brought to the notice of the trial Court. Though the payment out of the Court is sufficient compliance of the decree provided the vendee satisfies the Court within the period allowed about the let of receipt of money. This has not been complied with. Therefore, the decree remained unexecuted. It has been held in Mahmood Khan v. Khan Muhammad PLD 1973 Lahore 806 that "there is no gainsaying the fact that Muhammad Asif's decided having been obtained in disregard of the provisions of section 28 of the Punjab Pre‑emption Act, is not binding on Mahmood Khan, but as has been rightly pointed out by counsel for the respondents, with reference to Ghulam Tayyib v. Shahro Khan P L D 1962 BJ 1 such decree is not a nullity and Mahmood Khan shall have to prove his superior right as against the vendees and Mohammad Asif, in his own suit, in which Muhammad Asif has been impleaded as a party". In the case of Ghulam Tayyib, it was further observed that "the effect of the imperative provisions of section 8, Punjab Pre‑emption Act is that if one of the suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiff'.

5. In Muhammad Akram Khan v. Kaniz Fatima P L D 1952 Lahore 489, it was held that "two pre‑emption suits instituted one after the other without each impleading his rival pre‑emptor as a party in the suit, one of them got a consent decree in his favour while the suit of the other was pending as against the other pre‑emptor whose suit was pending and the latter, in the circumstances, was entitled to a decree for the whole of the property sought to be pre‑empted."

6. From the' facts narrated above, it is clear that Noor Alam had himself violated the provisions of Section 28 of the Punjab Pre‑emption Act, therefore, it 'does not lie in the mouth of the appellants to say that the respondent No. 1 had violated this imperative provision. In fact after coming to know of the fact that Noor Alam had obtained a decree the respondent No.l impleaded him as a party, therefore there was sufficient compliance of the provisions of S.28.

7. There is no merit in this appeal. The same is hereby dismissed with no order as to costs. A.A/Z‑123/S. Appeal dismissed