MUHAMMAD SADIQ SALIMA BIBI vs Mst. REHMAT BIBI And Other
This matter arises from a petition for leave to appeal filed by a successful pre-emptor against a Lahore High Court judgment dated 14-6-1980, which had allowed a revision petition by rival pre-emptors, set aside prior orders, restored the rival pre-emptor's suit, and ordered that the pre-emption decree in favour of the petitioner not extend to the rival pre-emptor's rights. Two competing pre-emption suits had been filed concerning a sale of land. The rival pre-emptor's suit was initially dismissed when his counsel reported no instructions on the date fixed for examining abatement and recording evidence, while the petitioner's suit was subsequently decreed. Applications for restoration and setting aside dismissal under the Code of Civil Procedure 1908 were dismissed by lower courts, but the High Court restored the rival pre-emptor's suit, finding sufficient cause for non-appearance. The core legal question concerns the implications and legal efficacy of restoring a rival pre-emptor's suit against an existing, unconditional pre-emption decree held by another pre-emptor. The Supreme Court granted leave to appeal to examine these implications, allowing proceedings in the restored suit to continue.
- Whether the restoration of a rival pre-emptor's suit affects an unconditional pre-emption decree already held by another pre-emptor?
- Did the High Court properly exercise its revisionary jurisdiction in setting aside the dismissal of the rival pre-emptor's suit?
- What are the legal implications of restoring a pre-emption suit after a decree has already been passed in a consolidated proceeding?
- Order IX Rule 9, Code of Civil Procedure 1908
- Order IX Rule 13, Code of Civil Procedure 1908
ORDER
SHAFIUR RAHMAN, J.--The petitioner, a successful pre-emptor, seeks leave to appeal against the judgment of the Lahore High Court, dated 14-6-1980 whereby a revision petition filed by the rival pre-emptors was allowed and "the orders under revision" were set aside and the rival pre-emptor's suit was restored and the pre-emption decree passed in petitioner's favour was ordered not to extend to rival pre-emptor s rights.
2. Against the sale of 337 Kanals 3 Marlas two pre-emption suits were filed; one by the petitioner and the other by Jan Muhammad. The suits were consolidated and 18th of December, 1971 was the date fixed for examining whether the suit instituted by Jan Muhammad, the rival pre-emptor had not abated. It was the date given for recording of evidence. The counsel representing Jan Muhammad appeared and made a statement that he had no instructions. On this, the application for setting aside the abatement was dismissed and his suit was also dismissed. The petitioner's suit was decreed on 22-1-1972.
3. On 12th of January, 1972 an application was filed under Order IX, rule 9, C. P. C. Explaining the absence on 18-12-1971 by the heirs of Jan Muhammad and seeking restoration of the proceedings.
On 10-2-1972 an application for setting aside the ex parte decree under Order IX, rule 13, C. P. C. Was filed in the petitioner's case. Both the applications were dismissed by the trial Court and the first appellate Court. The High Court also dismissed the revision against the dismissal of the application under Order IX, rule 13, C. P. C. So far as petitioner's suit was concerned. The other revision, however, was allowed and the suit originally instituted by Jan Muhammad was restored as according to the High Court sufficient cause was shown for non-appearance on 18-12-1971 and further it was not a date fixed in the suit but only in the application for setting aside the abatement.
4. The petitioner's grievance now is that he holds a decree in respect of the land sold. It is unconditional. The revival of the suit of other Jan Muhammad is not only unjustified on merits but also it is an exercise in futility for it cannot in view of dismissal of his other revision petition affect the decree held by him.
5. We consider that this case requires further examination with regard to the implication of the restoration of the suit of Jan Muhammad against the decree held by the petitioner. Leave to appeal is, therefore, granted. Security in the sum of Rs. 2,500. Proceedings in the trial Court to continue in the suit of Jan Muhammad which has been restored under the impugned order of the high Court and it shall proceed to a decision. This appeal to be heard on the present record.