LAL KHAN Versus KHIZAR HAYAT

AJMAL MIAN, J.‑‑‑ The above two appeals are with the leave of the Court against the common order dated 6‑2‑1988 passed by a learned Single Judge of the Lahore High Court in R.S.As. Nos. 25 and 26 of 1988, filed by the appellants/vendees against the concurrent judgments of the two Courts below decreeing the respondents' suit for pre‑emption, dismissing the same in limine and maintaining the above judgments and decrees. Leave to appeal was granted to consider the question, whether keeping in view of the circumstances of the case, the appellants were Benami of the sale transactions which were pre‑empted.

2. The brief facts are that respondents Nos.2 to 8 sold the suit land in favour of the appellants in consideration of Rs.88,000 through a registered sale‑deed dated 4‑2‑1980. The respondents Khizar Hayat and Bashir quad filed two pre‑emption suits, which were resisted by the appellants through their father, Wali Muhammad, guardian ad litem, inasmuch as a written statement was filed, in which a specific plea was raised to the effect that the appellants were Benamidar for their father, Wali Muhammad. When the above suits were fixed almost for arguments, Wali Muhammad moved two applications; One for his removal as guardian ad litem of the appellants, and second for getting himself impleaded as a party. Both the above applications were rejected by the learned Civil Judge. However, upon revision, the learned Additional District Judge, Sahiwal, by his order dated 8‑6‑1983, set aside the above order and remanded the case for deciding the following two issues:‑‑

Issue No. 3. Whether the suit is bad for non‑joinder of the necessary parties? If so, what is its effect? OPD.

Issue No.10/A. Whether Wali Muhammad guardian (Wall) of the minors defendant No.l and 2 is the real owner and vendee of the suit land (suit property) ? OPD.

3. After the above remand, the learned Civil Judge through his order dated 6‑12‑1983, recorded his findings in the negative on the above two issues. Against the above order, Wali Muhammad filed Revision Application No. 9 of 1984, but the same was dismissed by the learned District Judge by his order dated 22‑4‑1988 on the ground that he had no jurisdiction. Thereupon, he filed civil revision in the High Court, which was dismissed in limine by an order dated 15‑5‑1984. Civil petition for leave to Appeal No. 770 of 1984 was also dismissed by this Court through an order dated 12‑5‑1987. It seems that while the petition for leave to appeal was pending the above suits proceeded and the same were decreed on 6‑6‑1984. Against the above judgment and decree of the Civil Judge, the appellants filed without success first and second civil appeals. Thereupon, they filed petitions for leave to appeal, which were granted to consider the above question.

4. In support of the above appeals, Rana Muhammad Sarwar, learned ASC appearing for the appellants, has vehemently contended that the findings recorded by the learned Civil Judge on above Issues Nos.3 and 10/ A by his order dated 6‑2‑1983, which were upheld by this Court through the above order dated 12‑5‑1987 refusing to grant leave, do not constitute res-judicata as they had not filed any' revision application or a petition for leave to appeal against the above order of the Civil Judge dated 6‑12‑1983 and, therefore, it was open to them impugn the same after the passing of the final judgment and decree by the learned Civil Judge in view of section 105 of the Code of Civil Procedure, 1908, hereinafter referred to as the Code, subsection (1) of which reads as follows:‑‑

"105. 9ther orders.‑‑(1) Save as otherwise provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from , any error, defect or irregularity in any order, affecting the decision of she case, may be set forth as a ground of objection in the memorandum of appeal.

Reliance has been placed by him on the case ‑ of Baqa Muhammad v. Muhammad Nawaz and others (PLD 1985 Lah. 476 at 483) and the case of Abdul Aziz Shah and another v. Abdul Ghafoor and another (1985 SCMR 221 relevant at page 224).

On the other hand, Ch. Khalilur Rehman, learned Senior ASC appearing for the respondents, has urged that since the appellants were represented by Wali Muhammad as guardian ad litem and as they were parties to the above order dated 6‑12‑1983 of the learned Civil Judge, the above order constituted res judicata against the appellants as it was finally upheld by this Court through the above order dated 12‑5‑1987. Reliance has been placed by him on the following cases:‑

(i) G.H. Hook v. Administrator‑General of Bengal and others (AIR 1921 PC 11);

(ii) George Henry Hook v. The Administrator‑General of Bengal and others (1921 Indian Cases Vol. 60, 631);

(iii) Ram Kirpal v. Rup Kuari. (VI Allahabad (269) at 618).

5. It is true that subsection (1) of section 105 of the Code provides that no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. However, this principle cannot be pressed into service in the present case as the learned Civil Judge's order dated 6‑12‑1983 contained findings on above Issue Nos.3 and 10/A, which findings were upheld by this Court by declining petition for leave on appeal on 12‑5‑1987 filed by Wali Muhammad. The appellants were represented by said Wali Muhammad as guardian ad litem and he was also their natural guardian. It is, therefore, not proper to urge that the appellants were not heard by the High Court and this Court while hearing revision application and petition for leave to appeal against the above order dated 6‑12‑1983. If the appellants would have been strangers to Wall Muhammad, their above contention might have some force, but in view of the above admitted position, it was not open to the appellants to have re‑contested the correctness of the findings on the above two Issues in their regular first and second appeals. We are, therefore, inclined to hold that the judgments under appeal are unexceptionable and, accordingly, the above appeals are dismissed. However, there will be no order as to costs.

A.A./L‑62/S Appeals dismissed.