1980 PLP 1581 (CLC)

Ram Raj Tewari v, Ram Oudh and others A I R 1934 Oudh 496 ref, Mehtab Beg and 2 others v. Ghulam Mohammad and othdrs P L D 1975 Lah. 580 ref. . Sh. Namid Mukhtar for Petitioners. Jehangir A. Johja for Respondents. Dates of hearing : 20th and 21st October 1979. JUDGMENT. This Civil Revision is directed against an - order of Ch. Mohammed Islam Bhatti, Additional District Judge, Lahore, dated 17th January, 1972, whereby he set aside a judgment and decree dated 23rd December, 1963 of Mr. Ishaq Rahim Bux, Civil Judge, Lahore and remanded the suit to the trial Court for a fresh decision.

2. The facts of the case are that five pre-emptors had filed a suit against the three respondents, who are the vendees of the land in dispute. During the pendency of the suit, one of pre-emptors, namely, Barkat son of Boota died. An application for impleading his legal representatives was filed, but no order was made on this application. Instead, the fol lowing issue, along with other issues, was framed "4-A. Is the application of. the legal representatives of Barkat within time ?" The trial Court by its judgment dated 23rd December 1963 decreed the suit in favour of all the pre-emptors, and also decided Issue No. 4-A in favour of the plaintiffs. It was held that the application for implead ing the legal representatives was within time. However, no notice had been sent to any of the legal representatives, and none had participated in prosecuting the suit. In their appeal before the Additional District Judge, the respondents urged that the legal representatives of Barkat son of Boota not having been brought on record, no decree could be passed in their favour. It was urged that proceedings taken after the death of Barkat were erroneous, and liable to be set aside. The argument found favour with the lower appellate Court, who set aside the decree and reman ded the case for being retried in the presence of the legal representatives of Barkat from the stage it bad reached immediately before Barkat's death.

3. Learned counsel for then respondents has raised an objection about the competency of this revision petition on the ground that the remedy of appeal was open to appellants under Order XLIII, rule 10, C. P. C. In view of this objection a prayer is made on behalf of the appel lants that this revision petition may be treated as an appeal. In support of the submission that this revision can be treated as being an appeal, reliance is placed on Land Acquisition Collector . Rawalpindi v. Lieut General Wajad Ali Khan Burki (P L D 11961 Lab. 1028), Sreemati Guru Dasi v. Sarbananda Mahaldar and others (P L D 1961 Dacca 243), Province of West Pakistan and others v. Ghulam Qadir and another (P L D 1963 Kar. 337) and Dr. Md. Mubarik Ali v. Prof Md. Al larakha (P L D 1971 Dacca 293). According to the petitioner's learned counsel, a court-fee of Rs. 10 is payable on the appeal. This assertion is not controverted by the other side. Since a court-fee of Rs. 7.50 had alread been paid on the revision, the appellants have now paid the balance amount of Rs. 2.50 in the hope that this revision petition will be treated as an appeal.

4. Learned counsel for the respondents, however, has opposed the prayer for treating this revision petition as being an appeal. He submits that this being a pre-emption case, no indulgence should be shown to the petitioners. In this respect, he relies on Saeed Ahmad and others v. Karam Singh (P 4 D 1949 Lah.. 380), in which case it is observed that in cases of pre-emption discretion conferred by section 149, C. P. C. needs to be exercised with greatest care where the question of limitation is also involved. No ques tion of limitation, however, is involved in the present case. Filing of a revision instead of an appeal, is only a technical error, and there is no,4 bar in treating a revision as being an appeal even in a pre-emption case. This revision petition will, therefore, be treated as being an F. A. O.

5. Supporting the judgment of the lower appellate Court, learned counsel for the respondents submits that no decree for pre-emption could have been passed in favour of the heirs of Barkat deceased because they were not actually made parties. It is further submitted that in pre emption cases legal representatives of pre-emptors have also to prove that in addition to being the heirs of the deceased they also had a superior right of pre-emption as against the vendees. Reliance in this behalf is Mohammad Iqbal and a others v. Ghulam Ali Shah (P L D 1975 Lah. 1205) wherein the following view is expressed :- "That the right of pre-emption, though heritable, can be inherited by only those persons who have a preferential right as against the vendee either on account of ownership of land which may devolve upon them or on account of their being nearer heirs of the vendor than the vendee. On this principle, the respon dents cannot be deemed to be the legal representatives of Mst. Sahib Noor. There being no legal heirs of Sahib Noor, having a preferential right on account of being a possible heir of the vendor the right to sue did not survive. Therefore I agree with the order of the learned trial Court that the application of the respondents for reviving suit was liable to dismissal." In the present case Barkat deceased had claimed the of his right on account of his being a collateral and a khatedar of the vendors. His children having inherited his property must have also become the khatedars of the vendors. The children of the deceased, no doubt were also the possible heirs of the vendor if their father was such an heir. Therefore under the circumstances of this case the legal representatives did not have anything to prove before the Court for obtaining a decree. Learned counsel however submits that the superiority of the right of the legal representatives is not merely to be inferred from the circumstances of a case. It is something which has to be proved before the Court by following the prescribed procedure. and that for this reason it was neces sary to remand the case to the trial Court. .

6. Learned counsel for the appellants on the other hand has conten ded that such a plea was never raised on behalf of the respondents before the lower Appellate Court. They had an opportunity to raise this contention in reply to the application made by the plaintiffs to implead the legal representatives of Barkat deceased. It is there that the respondent could have raised the plea that the heirs of Barkat were not to be regarded as being his legal representatives because they did not enjoy any preferen tial right of pre-emption as against the respondents. This plea not having been taken at the proper time, the respondents cannot urge the same at this stage. It is also submitted that it is obvious that the heirs of Barkat had inherited his property, on account of which they too had become the khatedars of the vendors. Likewise the children of Barkat, like him, were also the possible heirs of the vendors, and as such there was no point in remanding the case for any adjudication on this question. It is also submitted that if any one could possibly . have a grievance of having been deprived of an opportunity of a hearing, it was the legal representatives. The respondents could not make capital out of this omission. There is force in these contentions.

7. However, the order under appeal is also attacked from yet another angle. It is submitted that the respondent's appeal before the lower Appellate Court should have been dismissed on the short ground that it was not properly constituted. What had happened was that Basbir s/o Hakim Ali, who was one of decree,-holders, had not been impleaded as .a respondent before the Lower Appellate Court. Learned counsel for the respondents however has pointed out that although Bashir had not been impleaded by the respondent, he on his own had filed. cross-objections to the appeal along with the other decree-holders, and as such he should be regarded as having become a party to the appeal, or at least the Court should have added him as a respondent in the exercise of powers under Order XLI,. rule 20, C. P. C. Reliance in this behalf is placed on Haji Sikandar v. Malik Khan Mohammad and others (1973 S C M. R 420). In that case some decree-holders had not been impleaded as respondents in the appeal against the decree. However the omitted decree-holders had filed separate cross-appeals, and the Supreme Court in these circumstances' laid down that powers under Order XLI, rule 20 could be exercised to implead them, as respondents in the judgment-debtors' appeal as well. The facts of the present case however are totally different. No separate cross-appeal has been filed by Bashir. No doubt he had filed cross-objections, along with others but these could not be regarded as being so, for the simple reason' that only a respondent could file cross-objections, and not a person who; had not been impleaded as such. The same view was expressed in almost identical circumstances in Ram Raj Tewari v. Ram Oudh and others (A I R 1934 Oudh 496). In the case in hand the respondents having failed to have impleaded a neces sary party, their appeal before the lower appellate Court was improperly constituted. Reliance can be placed in this behalf on Mehtab Beg and'2, others v. Ghulam Mohammad and others (P L D 1975 Lah. 589), in which case a similar view ,was expressed.

8. In view of the above discussion, I hold that the appeal filed by the respondents before the lower appellate Court was improperly constituted and should have been dismissed as such. I, therefore, accept this appeal and set aside the order of the learned Additional District Judge dated 17th January 1972, with the result that that the judgment and decree passed by Mr. Ishaq Rahim Bakhsh, Civil Judge, Lahore, stands revived. In the circumstances of the ease, however, the parties are left to bear their own costs. K.M.A Appeal accepted.