AHMAD SHER and others vs MUHAMMAD HAYAT

' SARDAR MUHAMMAD RAZA KHAN, J.---Ahmed Sher and others, original vendees in pre-emption suit have filed this appeal after leave of Court against the judgment dated 23-4-2001 of a learned Judgein Chambers of Lahore High Court whereby, on acceptance of the revision petition of Muhammad Hayat, respondent/pre-emptor, the latter was granted a decree for possession through pre-emption.

2. Vide Mutation No,29 attested on 5-5-1970, the disputed property measuring 250 Kanals was purchased by the vendees. Muhammad Hayat, on 5-5-1971, filed a pre-emption suit where he obtained an ex parte, decree for possession through pre-emption on 15-12-1973. The vendees moved the same Court for getting the ex parte decree set aside which, eventually was set aside on 22-10-1975. After holding the trial, the learned trial Court dismissed the pre-emption suit on 2-3- 1982.

3. Muhammad Hayat, pre-emptor went in appeal but the same was dismissed on 20-3-1985. Such concurrent dismissal was further challenged by the pre-emptor in revision before the High Court, which was accepted through the impugned judgment dated 23-4-2001. The finding of the two Courts aforesaid were set aside and the pre-emptor was granted a decree for possession of the suit-land through pre-emption on payment of Rs,31,285 as pre-emption money. The pre-emption amount, after adjustment of 1/5th if already deposited, was to be deposited on/or before 31-5-2001.

The petitioner-vendees seek leave to appeal.

4. The first and the foremost point raised by the learned counsel for the petitioners was that, as the pre-emptor had not made Talb-i-Mowathibat in the plaint and had not succeeded in obtaining a decree in his favour before the target date of 31-7-1986 as determined in Said Kamal Shah's case (PLD 1986 SC 360), his suit was liable to be dismissed. The argument was controverted by the learned counsel for the respondent on the ground that the pre-emptor had already obtained an ex parte decree on 15-12-1973, much earlier to the target date of 31-7-1986 and hence he was not bound to prove the performance of Talb-iMowathibat.

5. Learned counsel for the petitioners while meeting the aforesaid argument alleged that the ex parte decree obtained on 15-12-1973 had lost its relevant efficacy because, it was set aside by the same Court on 22-10-1975 and thus was non-existent for the purposes of the target date of 31-7- 1986. All these points need to be determined and discussed at some length.

6. It may be recalled that after setting side of the ex parte decreeon 22-10-1975, the suit was otherwise dismissed on 2-3-1982. Though under section 2(2) of the C.P.C. a dismissal of the suit is also a decree and even such dismissal on 2-3-1982 had occurred prior to the target date of 31-7- 1986 yet this Court in Babar Shehzad's case (1999 SCM R 2518) has already determined that a pre- emptor in order to avoid the implications of Said Kamal Shah's case must obtain a decree in his favour. The learned counsel for the respondent while placing relianceupon the aforesaid ruling claimed that even if the dismissal of suit on2-3-1982 is not considered to be a decree, still the pre- emptor had succeeded in obtaining a decree in his favour of 15-12-1973 irrespective of the fact that it was an ex parte decree. Reliance in this behalf was placed on Ghulam Rasool's case (1992 SCM R 1328), Bahadur Khan's case (1992 SCM R 2117) and Nazir Begum's case (1999 SCM R 210) where this court has held that an ex parte decree obtained in favour of the pre-emptor prior to the target decree obtained in favour of the preemptor prior to the target date throws the case of pre-emptor out of the mischief involved and further that there was no difference between a decree passed ex parte or a decree passed after contest, for, both were executable decrees falling within the scope of section 2(2) of the CPC and it is altogether immaterial whether such decree was set aside subsequently. Once a decree is obtained before the target date, it operates to meet the required demand.

7. Learned counsel for the petitioner lastly argued that in the cases aforesaid the ex parte decrees were set aside by the Higher Court whereas in the instant case it had been set aside by the same Court and hence is to be taken as non-existent. Despite our mental exercise, we could not legally or intellectually agree with the proposition because there is no difference between an ex parte decree set aside by the same Court and the one set aside by the High Court. The effect of the both is the same. It is not at all necessary that such ex parte or contested decree must subsist up to 31-7-1986.

The argument that such decree must subsist up to 31-7-1986, leaves no room for discussion because that would almost be a decree for all intents and purposes.

8. After having gone through the case-law and after having extensively heard the learned counsel on either side, we hold the consistent view that in the instant case, the pre-emptor had already obtained an ex parte decree on 15-12-1973, much before the target date regardless of the fact that such decree was subsequently set aside. Once, it is obtained before the target date, it eliminates the mischief involved. The pre-emptor could not, therefore, be non-suited for non-performance of Talb-i-Mowathibat.

9. Provably, the pre-emptor has a superior right of being owner in the estate which right is not possessed by the vendee. The amount of consideration has also been rightly fixed and determined by the learned High Court.

10. Last, it was contended by the learned counsel for the petitioners that, by another party, another suit was instituted challenging the sale in question which stood decreed on 2-1-1978. That such decree having the effect of cancelling the disputed sale, no pre-emption suit could exist nor could it be decreed. We have given our anxious thought to this aspect as well and believe firstly, that the present pre-emptor was not a party to such suit and moreover, it was obtained on 2-1-1978 on the conceding written statement of defendant. Being a consent decree, it was no more than a mere agreement between the parties regardless of the judicial imprimatur that it contained. Such agreement without the pre-emptor being a party to it, is not binding upon him. The learned High Court was, therefore, justified in holding that such consent decree was collusion between the parties thereto to damage the already pending suit for pre-emption. Such suit could not have been filed in the absence of the present vendees and if such vendees were a party thereto, they could well have informed about the pendency of pre-emption suit of Muhammad Hayat.

11. Viewed from any angle, we do not find any reasons to interfere with the impugned judgment dated 23-4-2001 of the learned Single Judge of the High Court. There being no merit in the appeal, it is hereby dismissed.