FAZAL HUSSAIN vs MUSHARAF SULTANA

ORDER

NAIMUDDIN, J.---Petitioner seeks leave to appeal from the judgment of the Lahore High Court, Rawalpindi Bench dated 30-1-90 in Civil Revision No.1244 of 1975 in the following circumstances.

2. The respondent filed two suits for possession, through pre-emption, of the land in dispute, against the petitioner in tile Court of Sr. Civil Judge, Jhelum which were decreed on 7-12-1961. He ordered that the pre-emption money be deposited in Court before 8-1-1962. The money was so deposited.

3. The petitioner questioned the decree in appeal before the District Judge, Jhelum and the District Judge, by the judgment and decree dated 30th September, 1975 dismissed the petitioner's appeal.

4. In the second round of litigation, a suit for pre-emption was brought by the respondent, which was decreed by the trial Court. The petitioner's appeal before the District Judge succeeded and her suit was dismissed. However, respondent's revision in the High Court succeeded and the case was remanded to the appellate Court for fresh decision of the appeal. In the meantime, after acceptance of the appeal and dismissal of her suit, the respondent/ pre-emptor withdrew the pre- emption amount on 31-7-1963. She, however, redeposited it on 25th September, 1968, after acceptance of the revision petition and even obtained possession of the land in question.

Subsequently, on coming to know that she had withdrawn the amount without permission of the Court, the petitioner made an application on 21st July, 1975 to the trial Court for restoration of the possession stating that withdrawal of the pre-emption amount without permission had had the effect of dismissal of the suit and rendering the decree totally ineffective so that the respondent was under an obligation to re-deliver the property. Instead of waiting for an order from the trial Court on that application, he made a miscellaneous application dated 23rd July, 1975 to the learned District Judge with whom the appeal was sill. Pending for passing an order to the effect that due to withdrawal of the pre-emption amount without permission of the Court, the decree obtained by her had become totally void and her suit stood dismissed. The learned District Judge dismissed the application by the order impugned before the High Court in the second round. In dismissing the application, the reason which weighed with the learned District Judge was that since withdrawal was followed by re-deposit, there was no reason to dismiss the suit or hold the decree invalid.

5. The learned High Court, relying on a number of authorities mentioned in the impugned order, dismissed the revision petition. In dismissing the revision petition the High Court relied on Sanwal Das v. Jaigo Mal and others (AIR 1924 Lah. 68) Mst. Bibi Aisha v. Sham Khan (AIR 1935 Pesh. 143) and Kisan Dewaloo Mali v. Ganga Bai w/o Jairam Mali and others (AIR 1939 Nagpur 279) wherein it was ruled that the withdrawal of amount after dismissal of the suit or of the passing of the decree by the trial Court would not defeat the pre-emptor's claim on this technical ground.

6. Learned counsel in support of the present petition submitted that the cases relied upon by the High Court were all distinguishable, because in those cases pre-emption amount was withdrawn with the permission of the Court and in the present case no such permission was obtained by the respondent before withdrawal of the pre-emption amount. Therefore, the respondent lost the pre- emption right.

The submission requires consideration. Leave is granted. Security in the sum of Rs.5,000.