HAJI MUHAMMAD vs JEHAN KHAN and 3 others

' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment dated 17-3-1992 passed by the Balochistan High Court.

2. Leave granting order is reproduced as under:-- "The facts to be noted are that in 1964 Haji Muhammad sold agricultural land which was initially pre-empted by Balaach Khan, brother of the petitioner. After about a month, a joint suit was filed by the petitioner and Balaach Khan for pre-emption under the provisions of Frontier Crimes Regulation. Balaach Khan died and on his death, his elder son Soorat Khan was substituted as plaintiff. Because of dissenting award the matter remained pending with the F.C.R. Court. On the withdrawal of F.C.R. The matter was referred to the Qazi, Kohlu in the year 1983 under the provisions of Balochistan Civil Disputes (Shariat) Application Regulation, 1976. Soorat also died and his younger brother Abdul Rehman was substituted in his place. The proceedings continued and on 28-9-1983 the suit was dismissed. On petitioner's appeal, Majlis-e-Shoora remanded the matter back to Qazi for recording entire evidence. After remand, evidence was recorded and the suit was decreed in favour of the petitioner on 30-11-1986 by the Qazi. The respondents Nos. 1 to 3 filed an appeal against the decree before the Majlis-e-Shoora. According to the petitioner, he was not made a party to the appeal and only Abdur Rehman was impleaded as a party though he had lost all interest in the proceedings. The petitioner made an application for execution of the decree. He was informed by the executing Court that the record had been requisitioned by Majlis-e-Shoora.

On 28-3-1987 the petitioner made an application to the Majlis-e-Shoora for return of record. The petitioner did not receive any notice of the appeal filed by the respondents against the decree of the Qazi. Majlis-e-Shoora on 25-5-1987 dismissed the appeal of respondents l to 3 but made certain observations. The respondents 1 to 3 filed a Revision Petition in the High Court impleading respondent No, 4 alone. The petitioner was impleaded as attorney of respondent No,

4. The High Court by its order dated 21-9-1987 accepted the Revision Petition holding that the petitioner was not party to the pre-emption suit which had been filed by Balaach alone and accordingly the original suit of late Balaach was directed to be dismissed. Against the judgment of the High Court, the petitioner filed a petition in this Court which was accepted on 25-9-1991 holding that the petitioner had filed the preemption suit. The following observations have been made in this order:- ' In view of this overwhelming evidence which is borne out from the original record it will be very difficult to agree with the learned Judge that Haji Muhammad appellant for the first time styled himself as co-plaintiff on 27-10-1983.'

' The appeal was accepted and the case was remanded to the High Court for deciding the matter on merits afresh. After remand, respondent Nabi Bakhsh on his behalf and attorney for respondents 1 to 3 moved an application for withdrawal of the petition. This application was granted and the petition of respondents 1 to 3 was dismissed as not pressed on 14-11-1991. The petitioner moved a Revision Petition against the adverse observation made by Majlis-e-Shoora in its judgment dated 25-5-1987 whereby the appeal of the respondents 1 to 3 was dismissed with certain observations.

This petition was dismissed on the ground of laches and bar of limitation. The petitioner being aggrieved, has filed this petition.

Learned counsel for the petitioner submitted that there was a positive finding by this Court that the petitioner had filed the pre-emption suit, therefore, the decree made in favour of the petitioner is capable of execution particularly in view of the fact that the appeal of the respondents was dismissed by Majlis-e-Shoora. The petitioner decree-holder was not impleaded as a party in the appeal filed by the respondents 1 to 3.

' Leave to appeal is granted. The respondents are restrained from alienating the property in dispute till the decision of this matter."

3. The Revision Petition of the appellant was dismissed on the ground of laches and bar of limitation. The impugned observation of Majlis-e-Shoora, dated 25-5-1987 was challenged in the High Court on 2-12-1991. The facts narrated above show that the appeal of the respondents was dismissed by Majlis-e-Shoora with an observation that the appellant had appeared as an attorney of Balaach. This observation is factually incorrect, as the appellant and his deceased brother Balaach had jointly filed the second suit. He was not acting as an attorney on behalf of Balaach on separate cause of action, therefore, such observation made by the Majlis-e-Shoora cannot be sustained in law. The learned High Court has not attended to the following observation of this Court made under para.5 of the judgment dated 29-5-1991, which is reproduced:-- "The above findings have been seriously challenged by the learned counsel for the appellant. His contention was that the learned Judge in his Chambers while dealing with this case has misread the entire evidence and therefore grave miscarriage of justice. In order to examine his contention, we have gone through the entire record, the original as well as the one which has been placed on this paper book, and we are of the view that there is lot of force in the same. It is true that the first suit for pre-emption which was filed on 24-10-1964 was by Balaach alone but the second suit which was filed within about 20 days on the same cause of action and in respect of the same property was filed by Balaach and his brother Muhammad now appellant."

This Court had finally held that the second suit was filed in respect of the same property by Balaach and his brother. The appellant, therefore, cannot be non-suited on the question of limitation.

4. Even the limitation has been explained by the appellant. After the remand of the case by this Court, the respondents withdrew their petition against the judgment of Majlis-e-Shoora dated 25- 5-1987, whereby their appeal was dismissed and decree of pre-emption assessed by the trial Court was maintained. If the respondents had not withdrawn their petition, the appellant would have not only contested the petition aforesaid but also raised objection about the observation made by Majlis-e-Shoora in the judgment impugned before the High Court. After the withdrawal of the petition, the appellant had no other choice but to file a Revision Petition against the observation recorded against him by Majlis-e-Shoora. Hence, the delay stood properly explained.

' For the aforesaid reasons, we accept this appeal and set aside the impugned judgment, but there shall be no order as to costs.