JEHANGIR Versus REHMAT ALI

ORDER

1. I have seen the record. In pre-emption suit, out of which present appeal has arisen the evidence recorded by the Civil Judge was duly signed by him. In another pre-emption suit between the same parties with the same vendor and with only quantum of land and consideration being different, evidence was virtually copied from this suit but was not signed and therefore in an appeal against .pre-emption decree the said order case was remanded for recording of evidence and fresh decision. However, this case too was remanded for fresh decision on the ground that the other case between same parties was being remanded for fresh decision and if he does not remand this case also the purpose of remand of the other case would be frustrated and the trial Court will be divested of free exercise of his discretion in the disposal of the said suit.

2. Learned counsel have vociferously argued that in this case there was no flaw and, therefore, this case should not have been remanded for fresh decision. In my opinion, however, the learned Additional District Judge had exercised his discretion in sending back this case as well to the trial Court on a valid ground i.e. that there should be no conflict of decisions. The parties in this case are the same, the fact on which Jehangir claim superior right of pre-emption as against Rehmat Ali is also the same, i.e. that appellant-plaintiff is collateral of vendor and respondent-defendant had no equivalent and superior qualification. The only difference is in the quantum of land and consideration therefor. In this view of the matter the learned Additional District Judge was right in saying that if this case is not sent to the trial Court, trail Court would be compelled to take the view which he has already taken in this case and will not have a free exercise of jurisdiction. In this view of the matter there is no merit in the point raised by the learned counsel. The appeal is, therefore, dismissed in limine.

3. The record received in this Court should be sent back immediately to the trial Court.

4. K.M.A. Appeal dismissed.