' MUHAMMAD ARIF, J.--- The facts of the case as also the points on which leave was granted by this Court on 15-2-1995 are being reproduced, verbatim, therefrom:- "This petition by the vendee/defendant in a pre-emption suit seeks leave to appeal against the judgment of a learned Single Judge of Lahore High Court, dated 15-11-1993 dismissing her appeal (R.S.A. 181 of 1973) directed against the judgments and decrees of the courts below.
(2) Petitioner allegedly purchased the suit-land for ostensible sale price of Rs,55,000 vide Mutation No,813 sanctioned on 3-6-1969. Payment of the sale price was stated to have been made by the vendee as follows:--
(i) Rs,20,000 paid to the vendor before the Sub-Registrar, Lahore at the time of registration of the sale agreement.
(ii) Rs,14,000 paid at the time of attestation of mutation and
(iii) The remaining amount of Rs,21,000, through transfer of the vendee's Bungalow No,573/A in Gulberg, Lahore to the vendor.
(3) Respondent's suit to pre-empt the sale of the land was resisted by the petitioner on the ground, inter alia, that the transaction was not a sale. Her plea was that it was a composite transaction consisting of partly the sale and partly the exchange and as such it was not pre-emptible. In support of her contention, the petitioner apart from leading oral evidence also brought on record an agreement to sell, dated 18-4-1968 (Exh.D.1) and the registered sale-deed dated 10-12-1970 (Exh.D.2).
Trial Court as also the first Appellate Court found that the transaction forming the subject-matter of the suit was a sale and thus, pre-emptible. The leirned Judge in the High Court agreed with this finding though with the observation that ordinarily the evidence led by the petitioner should have entailed the decision of Issue No,1 in her favour, but the time gap between the agreement to sell (Exh.D.1) and the sale-deed (Exh.D.2), coupled with the fact that in the meantime, suit was instituted casts serious doubts on her bona fide and genuineness of the transaction embodied in (Exh.D.2).
(4) Learned counsel appearing in support of this petition has contended that the so-called delay in the execution of the sale-deed (Exh.D.2) was wholly inconsequential in view of the clear recital in the agreement to sell (Exh.D.1), a registered document, regarding the transfer by the petitioner of her bungalow in Gulberg, Lahore as part of the consideration for the sale of the suit-land to her which fact was also specifically mentioned in the mutation (Exh.P.1). Learned counsel has submitted that in the presence of these documents coupled with the oral evidence unrebutted by the respondents, genuineness of the sale-deed (Ex.D.2) was not open to question and it could not be reasonably held that it was executed to defeat the pre-emption suit. In the submission of the learned counsel the documents above mentioned have not been properly read/construed and their effect in the context of totality of evidence not examined by the courts below and the learned Judge of the High Court. The contention raised by the learned counsel needs consideration. Leave sought is accordingly granted.
(5) Status quo as regards the petitioner's possession shall be maintained subject to her furnishing security within one month to the satisfaction of the trial Court that in the event of the dismissal of the appeal, she will pay mesne profits to the respondent."
(6)
2. During the pendency of this appeal C.M.A. No,705 of 1997 was made by the appellant under Order XV, Rule 6 of the Supreme Court Rules, 1980, hereinafter referred to as the Rules, "... For the amendment of the title of the appeal" on the plea that Abdul Razzaq Khan and Muhammad Khuda Yar Khan respondents Nos.2 and 3 had died during the pendency of R.S.A. Before the High Court and their legal heirs were brought on record then and ".. The names have inadvertently wrongly mentioned in C.P.L.A." It was prayed that "... The title of appeal be allowed to read as follows:---
(1) Abdul Razzaq Khan (deceased) represented by
(a) Noor Ahmed,
(b) Abdul Ghafoor Khan, both sons of Abdul Razzaq Khan (deceased).
(c) Mst. Gul Bibi widow of Abdul Razzaq Khan,
(2) Muhammad Khuda Yar Khan (deceased) represented by:
(a) Ahmed Yar Khan,
(b) Allah Nawaz Khan, both sons of Muhammad Khuda Yar Khan (deceased),
(c) Mst. Mumtaz Bibi daughter of Muhammad Khuda Yar Khan,
(d) Mst. Aisha widow of Muhammad Khuda Yar Khan, all caste Pathan Alizai, residents of Karri Ali Mardan, Tehsil and District Muzaffargarh.
' This application was replied to by the respondents on 17-11-1997, vide Part-II of C.M.A. No,705 of 1997 in C.A. No,170 of 1995 and allowed "... Subject to all just exceptions..." on 20th January, 1998.
3. In C.M.A. No,705 of 1997, arguments were addressed by Ch. Khurshid Ahmed, learned Advocate Supreme Court appearing in support of this appeal, on 14-12-1998 when the matter was postponed to the next day. However, on 15-12-1998, Mr. Khawaja Farooq, learned Advocate Supreme Court concluded the arguments in the miscellaneous application after Ch.. Khurshid Ahmed had argued out the main case as well, on that day.
4. The reply to the miscellaneous application talks of (1) very institution of the civil petition, showing impleadment of dead persons as party therein being bad in law; (2) the matter could not make any progress whatsoever as it was a nullity right from day one and (3) the grant of appellant's prayer will tantamount to treating a hopelessly time-barred cause to be within time and that too
(i) without there being any application seeking condonation of delay and; (ii) sans any explanation in that behalf.
5. Both, Mr. Ch. Khurshid Ahmed and Mr. Khawaja Muhammad Farooq, were of the view that this application is competent under Rule 6 of the Rules. According to them, the record of a case can be corrected in terms of Rules 6 and 7 of the Rules and that the cases of Muhammad Sher v.
Muhammad Khan PLD 1975 Lah. 1016, Mst. Sardar Begum v. Muhammad Anwar Shah and others 1993 SCMR 363 and Muhammad Sharif v. Dr. Khurshid Mian 1996 SCMR 781, help their client.
6. On merits, Ch. Khurshid Ahmed has contended that the trial Court as well as the First Appellate Court had found that the transaction forming the subject-matter of the suit was "sale" and, thus, pre-emptible. The learned Judge in Chambers did agree with the said findings, by specifically observing that the appellant-vendee should have succeeded in the case. However, it was also observed that the time gap between the agreement to sell (Exh.D.1) and the sale-deed (Exh.D.2), coupled with the fact that in the meantime pre-emption suit was instituted, cast serious doubt on "... Her bona fide and genuineness of the transaction embodied in (Exh.D.2)." He was of the view that the observations doubting the bona fides of the appellant have played havoc with her in that the transaction in dispute being composite in nature i,e,, "sale" plus "exchange", her second appeal should have been accepted by the High Court. He has relied upon Allah Dad v. Bagh Ali and another PLD 1968 Lah. 428, Muhammad Irshad and 4 others v. Sardar Khan 1981 CLC 124 and Ghulam Hussain v. Jam Allah Dad through Legal Heirs PLD 1989 Lah. 73 in support of the afore- referred plea.
7. Contrarily, Mr. Gul Zarin Kiani, learned counsel appearing on behalf of respondent-Abdul Rashid Khan, has controverted the plea raised by the learned counsel for the other side that C.M.A. No,705 of 1997 was competently made to bring on the record the legal heirs of deceased (1) Abdul Razzaq Khan and (2) Muhammad Yar Khan. He has vehemently contended that the very institution of the civil petition against Abdul Razzaq Khan and Muhammad Khuda Yar Khan was a nullity. Respective L.Rs, of both the deceased were admittedly brought on the record during the pendency of the regular second appeal before the High Court. He has specifically relied upon Mst. Aisha Bibi yr Syed Saghirul Hassan and others 1985 SCMR 1758 to contend that Rule 6 of the Rules does not apply herein that the record in this Court did not become defective on account of anything taking an origin after the grant of leave to appeal.
8. On merits, it was argued by Mr. Gul Zarin Kiani that the learned Judge in Chambers was quite right in agreeing with the concurrent findings of the courts below that the sale or transfer of her small bungalow in Gulberg in favour of Abdul Rehman Khan (D.W.1), had no nexus with the sale of the suit-land by him in her favour and that these transactions did not constitute "exchange" within the contemplation of law to make it non-pre-emptible. Thus, no fault can be found with the findings of all the courts on Issue No, 1.
9. We have considered the arguments addressed at the Bar by the learned counsel for the parties and have also been taken through the material by them.
10. We intend to deal with efficacy or otherwise of C.M.A. No,705 of 1997, purportedly filed under Order XV, Rule 6 of the Supreme Court Rules, 1980. This rule reads as under:-- "(6) Where at any time after the grant of leave to appeal, the record is found to be or becomes defective by reason of the death or change of status of a person who was a party to the decree or other decision by the lower Court, it shall be the duty of the appellant to make an application in that behalf and the Court, may on such application, or on application by any other person to be substituted or entered on the records, in place of, or in addition to, the party on the record, and the name of such person shall thereupon be deemed to be so substituted or entered on the record as aforesaid."
' We have looked in vain for any happening answering the description of a "defect" taking such proportion/status "... After the grant of leave to appeal...". It is common ground between the parties that the dates of death of deceased (1) Abdul Razzaq Khan on 8-10-1981 and (2) Muhammad Khuda Yar Khan on 12-2-1989 were duly noticed by the High Court during the pendency of R.S.A.
No,181 of 1973 and their respective legal representatives were brought on the record on 9-4-1989 i,e,, years before passing of the impugned judgment by the High Court on 15-11-1993. Petition for leave to appeal was filed on 26-12-1993 and leave was granted on 15-2-1995. In this view of the matter the A impleadment of deceased-Abdul Razzaq Khan and Muhammad Khuda Yar Khan in the C.P.S.L.A as respondents Nos.2 and 3 respectively, had no nexus with the application by appellant- Mst. Nasim Akhtar on 18-6-1997. Put differently, it was not made when the record became "...
Defective by reason of the death or change of status of a person who was a party to the decree or other decision by the lower Court..."., We also find that C.M.A. No,705 of 1997 was "... Allowed subject to all just exceptions", on 20th January, 1998. It is not even so much as alleged on behalf of the appellant that the factum of demise of Messrs Abdul Razzaq Khan and Muhammad Khuda Yar Khan was not known to her or her learned counsel. In fact, the bringing on record of the respective L. Rs, of the deceased in the High Court on 9-4-1989 clearly indicates that the impleadment of the deceased in the C.P.S.L.A. Was a conscious act of all concerned in that process. No premium can be put on gross and culpable negligence of the appellant in making the C.P.S.L.A. Against dead persons. There is no cavil with the case-law cited at the Bar on behalf of the appellant to the effect that the record of any case can be corrected by this Court under Rule 6 of the Rules. C.M.A. No,705 of 1997 was allowed on 20-1-1998 subject to all just exceptions and as the objections taken by and on behalf of respondent-Abdul Rashid Khan are quite weighty, we are not inclined to the view that bringing on record of the L.Rs, of the deceased through C.M.A. No,705 of 1997 will tantamount to curing any alleged defect within the contemplation of the Rules.
11. As we have not agreed with the learned counsel for the appellant that any case for correcting the record of this appeal has been made out, there is no need for any detailed reference to the merits of the case. Suffice it to say that the learned Judge in Chambers had upheld the findings of the trial Court to the effect that the transaction in dispute was sale (and not exchange) with the result that the disputed lands could not escape the incidence of pre-emption, according to law. As regards the observation that "... Ordinarily this evidence should have entailed the decision of Issue No,1 in her favour but the most damaging factor to her cause is the time gap between the agreement to sell (Exh.D.1) by which she had agreed to sell or give to Abdul Rehman Khan her bungalow in lieu of the suit-land besides some amount in cash, and the execution of registered sale-deed (Exh.D.2) embodying the sale of her bungalow in his favour. No doubt, in the agreement to sell (Exh.D.1) Abdul Rehman Khan (D.W.1) in her favour, undertaking to sell the suit-land to her, there was a recital indicating her intention to transfer her bungalow in Gulberg, Lahore, to him for Rs,20,000, but the completion a this transaction was delayed for about two and a half years when the preemption suit filed by the plaintiffs-respondents in respect of the suit-land against her was pending. This delay coupled with the pendency of the pre-emption suit cast serous doubts on her bona fide and genuineness of the transaction embodies in (Exh.D.2)...", the same paled out into insignificance when C.P:S.L.A. Was filed on 26-12-1993. We are of the view that the very institution of the proceedings in this Court as above had the effect of overreaching all other facts of the case. In Mst. Aisha Bibi (supra) after taking notice of a similar situation as involved in this case, this Court held that; "... In such a situation, we cannot but hold that the petition as filed was not properly constituted and there is no appeal properly filed before us".
12. For all that has gone before, we recall the order granting leave to appeal and dismiss the petition for leave to appeal as incompetent.