GHULAM RASOOL and others vs FAIZ BAKHSH
The petitioners, real brothers, filed a pre-emption suit claiming superior rights as co-owners, which was decreed ex parte on 17-7-1982. The trial court later set aside the ex parte decree, tried the suit on merits, and dismissed it. On appeal, the District Judge remanded the matter, after which the trial court decreed the suit on 14-7-1988, a decision upheld by the District Judge. However, the High Court accepted the respondent's revision petition and set aside the judgments of the subordinate courts, holding that no decree could be passed after 31-7-1986 pursuant to the rule laid down in Government of N.-W.F.P. v. Malik Said Kamal Shah. The petitioners sought leave to appeal before the Supreme Court, contending that an ex parte decree had already been passed prior to the target date. The core legal question concerns whether the existence of an initial ex parte decree passed before 31-7-1986 exempts a pre-emption suit from abatement upon subsequent remand and retrial. The Supreme Court granted leave to appeal to examine the matter, particularly noting conflicting views taken by the Lahore High Court.
- Does the passing of an ex parte decree in a pre-emption suit prior to 31-7-1986 save the suit from abatement where the decree was subsequently set aside and a fresh decree is passed after the target date?
- Can a pre-emption suit be decreed after 31-7-1986 in light of the judgment in Government of N.-W.F.P. v. Malik Said Kamal Shah?
ORDER
' SAAD SAOOD JAN, J.---The petitioners, who are real brothers, filed a suit for pre-emption basing their claim to superior right on the assertion that they were co-owners in the estate. The suit was decreed ex parte on 17-7-1982. The respondent applied to the trial Court for setting aside the ex parte decree. His application was accepted and the trial Court then proceeded to try the suit on merits. By its judgment dated 3-6-1987, it dismissed the suit. The petitioners filed an appeal before the District Judge which was accepted and the suit was remanded to the trial Court for a fresh decision. After the remand the trial Court decreed the suit on 14-7-1988. The respondent filed an appeal before the District Judge but without any success. He then preferred a revision petition in the High Court. A learned Single Judge accepted the revision petition and set aside the judgments of the subordinate Courts on the ground that no decree could be passed in the suit after 31-7-1986, in view of the judgment in Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360. The petitioners seek leave to appeal from the judgment of the High Court.
2. In support of this petition it is contended that in this case a decree, even though ex parte, was passed on 17-7-1982 and that it was open to the petitioners to defend it despite the fact that it was later set aside. This was thus not a case where the decree was being passed for the first time after 31-7-1986, the target date specified in Malik Said Kamal Shah's case. It is also pointed that in Civil Revision No, 1650/D of 1989, the Lahore High Court has taken a view different from the learned Single Judge who accepted the revision petition in this case.
3. The contentions raised in this petition need examination particularly in view of the two conflicting judgments delivered by the Lahore High Court. Leave to appeal is granted. Security Rs, 5,000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. The direction already given by this Court for maintenance of status quo with regard to possession to continue during the pendency of the appeal.