MUHAMMAD HANIF vs ALLAH BACHYA AND 2 Other

ORDER

ASLAM RIAZ HUSSAIN, J.-This judgment will dispose of two petitions (C. P. S. L. A. No. 605/78 and 639/78), which are between the same parties and against the judgments of the High Court of the same date.

2. We have heard the learned counsel for the parties at some length. We therefore, convert these petitions into appeals and proceed to dispose of them as such.

3. Facts giving rise to these appeals are that Muhammad Hanif filed two pre-emption suits against the respondents with regard to the two pieces of agricultural land in Village Rukanpur, Tehsil Lodhran, District Multan vide two separate registered sale-deeds. In the first sale-deed, the sale price of the land was mentioned as Rs. 25,000 while in the second sale-deed the price was mentioned as Rs. 35,000. In the pre-emption suits, however, the present petitioners asserted that the sale prices were, in fact, Rs. 4,000 and Rs. 7,000 respectively.

The respondents-vendees contested the suits. Six issues were framed on the basis of the pleadings of the parties. They read as under :- "(1) Whether the court-fee is deficient. Its effect ? O. P. D.

(2) Whether the plaintiff has a superior right ? O. P. D.

(3) Whether the plaintiff had waived his right ? O. P. D.

(4) Whether the sale amount of R.s. 20,000 was paid in fact or fixed in good faith ? O. P. D.

(5) Issue No. 4 failing, the market value.

(6) Relief."

The parties led oral as well as documentary evidence in support of their respective claims and the suits were decreed by the learned trial Court vide its judgment and decree, dated 1-11-1972.

Issues Nos. 1 and 3 relating, respectively, to court-fee and waiver of his right by the plaintiff, were decided in favour of the appellant-plaintiff. Similarly Issue No. 2 relating to the superior right of pre- emption of the appellant/plaintiff was decided in his favour.

As for Issue No. 4, it was held by the learned trial Court that the prices as mentioned in both the sale-deeds were not correct. As regards issue No. 5, it was held in both the cases, that the actual sale prices were Rs. 11,151 in the case (giving rise to C. P. No. 605/78) and Rs. 18;244 in the other case (giving rise to C. P. No. 639/78).

4. The respondents-defendants challenged the judgment of the trial Court by filing two separate appeals in the Court of District Judge, Multan who by his judgment, dated 10-10-1973, remanded the case to the learned trial Court for a fresh decision regarding its findings on Issues Nos.4 and 5 on the basis of additional material to be brought on the record by the parties.

5. On remand the learned trial Court fixed the cases for various dates. On one of these dates i.e. 10- 2-1975 the counsel for the appellant/ plaintiff could not appear and the suits were dismissed in default, in their entirety. The appellant filed two applications for restoration of suits, which were rejected.

The appellant, thereafter, filed two separate appeals against the dismissal of the entire suits on the ground that these had been remanded to it for fresh decisions only with regard to Issues Nos.4 and

5. Both the appeals were dismissed by the learned District Judge on 4-11-1976. The appellant then filed two separate revision petitions before the High Court which, too, were dismissed vide the impugned judgments.

6. Feeling aggrieved the appellant has filed the present petitions for leave to appeal (one in each case) which as already stated have been converted into appeals and are being disposed of as such.

7. After having heard the learned counsel for the parties at considerable length and going through the relevant portions of the judgments of the Courts below are inclined to agree with the submission of the learned counsel for the appellant that both the cases had teen remanded for fresh decisions only with regard to its findings of Issues No. 4 and 5, which relates to the determination of the sale prices of the land in the two suits. This is apparent from the following observation of the learned District Judge in his judgment, dated 13-10-1973, for remanding the cases to the trial Court "6. . . The learned counsel for the appellants has requested that the suit may be remanded to trial Court for the determination of the market value in accordance with law. The learned counsel for the respondent has not seriously opposed this request.

7. Accordingly, I accept this appeal, set aside the judgment and decree under consideration and remand the suit to the learned trial Court for decision afresh according to its findings on Issues Nos.4 and S to be given afresh on the basis of the material which may be brought on record by the Parties as required by section 27 of the 1. Pre-emption Act. The trial Court may also consider the feasibility of issuing a commission for the assessment of the market value of the land and bring on record its five yearly average."

8. The misunderstanding appears to have been caused by the observa--tions in the first line of para. No. 7 of the aforementioned judgment of the District Judge, i.e. "Accordingly, I accept this appeal, set aside the judgment and decree under consideration . . . . ." and the learned trial Court failed to notice the subsequent portion of paragraph 7 which clearly shows that the remand order required only a fresh decision on Issues Nos.4 and 5.

Even the High Court observed as follows in para. No. 4 of its judgment :- "In the instant case the suit had been sufficient evidence in regard to Issues -1 and 5 and it was for this reason that the order of remand had contained the direction that Issues 4 and 5 were to be decided afresh."

But subsequently, the High Court appears to have overlooked this aspect.

9. From a reading of the impugned judgments we notice that the learned High Court Judge had concerned himself mainly with the merits and propriety of the dismissal of appellant's applications for restoration of the suits which had been dismissed by the learned trial Court in default and had not adverted to the question as to whether, in the circumstances of this case, it was competent for the learned trial Court to have dismissed the entire suits.

The result is that the main question in the revisions before the High Court remained undecided.

10. Since the learned trial Court was required to give its finding afresh only on Issues Nos.4 and 5 which relate to the question of peices of the two pieces of land in dispute, the learned trial Court could not have dismissed appellant's suits in toto, specially in view of the fact that appellants claim of superior right of pre-emption had already been decided in his favour and had been upheld by the learned District Judge.

11. As a result of the above discussion we allow the appeal, set aside the judgments of the two Courts below, restore the suits and remand them to the trial Court for fresh decision on Issues Nos.4 and 5 only, affect recording any evidence which the parties may choose to produce before it.

12. Since this is a very old matter it is directed that the learned trial Court shall conclude the matter within a period of four months after it has received the files of the two cases and fixed the first date of hearing, unless of course he is unable to do so for reasons beyond its control.

No order as to costs.