GHULAM MUHAMMAD Versus KHIZER HAYAT

ORDER

1. MUHAMMAD AFZAL ZULLAH, J .‑‑Leave to appeal has been sought by the vendees' side in a pre‑emption matter.,

2. Learned counsel has raised the two‑fold contentions: (i) relating to waiver; and (ii) relating to superior right of the petitioners‑vendees on the basis of tenancy.

3. On the first point, the petitioners have lost on the finding that participation of the respondents' side in a private auction could not deprive a pre‑emptor from asserting right of pre‑emption. After some arguments on this question, the learned counsel did not press the point any further when the judgment of this Court in Baqri v. Salehon and three others P L D 1972 S C 133 was brought to his notice.

4. On the second point while admitting that the petitioners would lose defence of tenancy if they had joined strangers in the transaction of purchase, learned counsel, nevertheless, argued that some of the observations made in Mangtha Khan v . Mst. Hamida Begum P L D 1981 S C 51 support his case.

5. After hearing the learned counsel, we are of the view that the judgment relied upon is entirely distinguishable. The case of the petitioners falls within the category of those cases where transaction by vendees is indivisible. The learned counsel later on stated that the .following judgments go against him on this point‑‑Mir Ahmad Khan v. Gul Ayub Khan P L D 1985 Pesh. 3, Fazal Dad v. Muhammad Azam 1980 C L C 1817 and Abdullah v. Abdul Karim P L D 1968 S C 140.

6. After hearing the learned counsel at some length, we have not been able to find any justification for interference with the impugned judgment which does not suffer from any infirmity. Leave to appeal accordingly is refused.

7. M.I. /G‑109/S Petition dismissed.