GHANI KHAN Versus ABDUL MUQTADIR KHAN

ORDER

MUHAMMAD AFZAL ZULLAH , J. ‑‑Leave to appeal has been sought from judgment, dated 6‑4‑1983 of the Peshawar High Court; whereby respondent's Constitutional Petition arising out of a pre‑emption case, was allowed.

2. Respondent No.1 instituted suit against petitioner/ vendee, before a civil Court for possession of the suit land through pre‑emption on various grounds including one of tenancy under M.L.R.

115. It was transferred to the Collector under sub‑pare. (5) of Paragraph 25 of the M.L. R. , who held that the ground of tenancy was not available at the relevant time. The case was re‑submitted to the Civil Court, for the trial of the remaining grounds, by the Collector with his order, dated 21‑10‑1979. Aggrieved by this order the respondent (pre‑emptor) successfully challenged it after a year in the High Court through a Constitutional Petition. The petitioner (vendee) has now sought leave to appeal.

3. Learned counsel has contended that remedy of appeal and thereafter of revision being available to the respondent without seeking 'the same, he could not be granted relief in Constitutional jurisdiction particularly when the respondent did not avail the remedy of appeal on account of its having become time‑barred.

4. It is not denied that remedies of appeal and revision were available to the respondent No. 1. No tangible explanation has been offered from the respondent's side as to why those not availed of. It is also not denied that the respondent's appeal to Commissioner had become time‑barred due to his inaction. In the circumstances of this case, therefore, while converting this petition into appeal we allow the same. The impugned judgment is set aside. There shall be no orders as to costs.

M. I./G‑7/S Order accordingly.