ABDUL KHALIQ And Others vs Subedar MUHAMMAD SHARIF And Other
This is a petition for leave to appeal arising from a judgment of the Lahore High Court, which had dismissed a pre-emption suit in revision following previous Supreme Court judgments regarding the requirement of making Talabs and the cutoff date of 31-7-1986. The core legal question was whether a pre-emptor's suit could be dismissed for failure to mention Talabs in the plaint when claiming a superior right as a co-sharer, in light of intervening case law. The Supreme Court converted the petition into an appeal, holding that pursuant to its precedent in Ahmad's case (PLD 1989 SC 771), the trial Court is entitled to examine the question of a pre-emptor's superior right as a co-sharer in the Khata notwithstanding the absence of Talabs in the plaint. The appeal was accordingly admitted for regular hearing upon furnishing security.
- Whether a pre-emption suit can be dismissed for failure to mention Talabs in the plaint when the pre-emptor claims a superior right as a co-sharer?
- Does the trial court have the right to examine the question of a pre-emptor's superior right as a co-sharer in the Khata despite the absence of pleadings regarding Talabs?
ORDER
RUSTAM S. SIDHWA, J.---This is a petition by Abdul Khaliq and others, petitioners, seeking leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench. Dated 21-11-1988.
2. Abdul Khaliq and others, petitioners, instituted a suit against Subedar Muhammad Sharif and others, respondents, to pre-empt the sale in their favour. The petitioners claimed their superior right on the basis of being co-sharers in the Khewat, co-owners in the Mouza and as collaterals of the vendor. On 7-4-1981 their suit was dismissed. None of their claims for superior right was established. On 17-3-1984 their appeal against the said judgment was accepted and the case was remanded for redetermination of issue No. 5. Before the case could be decided by the trial Court, the respondent filed a revision petition in the High Court claiming, on the basis of Sher Muhammad's case PLD 1988 SC 412 and Ghulam Oadir's case PLD 1988 SC 701, that as no decree could be passed in favour of the petitioners after 31-7-1986 and as no Talabs had been mentioned in the plaint, the suit should be dismissed, as no useful purpose would be served by permitting the suit to proceed in the trial Court. The High Court accepted the revision on the basis of the reasons advanced by the respondents.
3. On behalf of the petitioners it is submitted that on the basis of the decision of this Court in Ahmad's case PLD 1989 SC 771, the trial Court has the right to look into the question as regards the pre-emptor's superior right as co-sharer in the Khata, notwithstanding the fact that Talabs have not been mentioned in the plaint.
4. In view of the decision of this Court in Ahmad's case (supra), this petition is converted into appeal. The petitioners shall furnish security in the sum of Rs.5,000. The appeal shall be heard on the basis of the present record. Parties are at liberty to file such further documents as they consider necessary and fit for the full and final disposal of the appeal.