MUHAMMAD LQBAL Versus MUHAMMAD KHAN

Muhammad Khan respondent No,2 filed a suit for pre‑emption on 1‑9‑1985 against Akhtar Ali and Arshad Mahmood, vendees of the land in dispute. Suit was dismissed by the trial Court on 25‑6‑1987 in view of the judgment of the Shariat Appellate Bench of the Supreme Court reported in "Government of N.‑W.F.P. v. Malik Said Kamal Shah" PLD 1986 SC 360. The plaintiff /respondent admittedly did not file any appeal against the dismissal of his suit and instead preferred a revision petition on 14‑7‑1987. It appears that during the pendency of the revision petition, the original vendees sold the land‑ in dispute to the present petitioner on 22‑7‑1987. Muhammad Khan respondent made an application before the District Judge on 26‑7‑1987 for impleading the present petitioner as a party in the revision petition. Admitted position is that the learned District Judge passed no order on this application and he proceeded to allow the revision petition without impleading the petitioner as a party therein or serving any notice on him. Learned District Judge in allowing the revision petition remanded the case to the trial Court for fresh decision vide order dated 20‑2‑1987.

2. Main grievance of the learned .counsel is that the petitioner having purchased the land in dispute during the pendency of the revision petition and this fact having been brought to the notice of the learned District Judge by means of an application moved by the respondent‑plaintiff himself, petitioner should have been impleaded as a party and the impugned order passed in his absence and without notice to him cannot be sustained in law. Learned counsel appearing for the respondent is not in a position to controvert this proposition, In the circumstances, this writ petition is allowed and the impugned order of the learned District Judge is set aside with the direction that he shall decide the revision petition afresh after impleading the petitioner as a party therein and after giving him reasonable opportunity of hearing. It is submitted by the learned counsel for the petitioner that the respondent‑plaintiff having failed to file an appeal against the dismissal of his suit, his revision was not competent. Now that the case has been remanded to the learned District judge, it will be available to the petitioner to agitate this question also before him and he shall give due consideration to it. With these observations, this writ petition is allowed but with no order as to costs.

H.B.T. /M‑678/L Petition allowed.