' SAYED ZAHID HUSSAIN, J.--- This is appeal under Article 185(2)(d)(e) of the Constitution of Islamic Republic of Pakistan 1973, against the judgment of the Lahore High Court, Lahore dated 5-10-2001 whereby Civil Revision No,1158-D of 1992 and Civil Revision No,1159-D of 1992 were allowed in the manner that "The impugned decree is set aside and a fresh decree is directed to be passed in favour of the "rival pre-emptors" to the extent of 77 Kanals. 11 Marlas- on payment of proportionate price of Rs,1,62,000. The amount shall be deposited on or before 12-11-2001 failing which their suit shall stand dismissed. Decree will also provide that "1st Pre-emptors" shall get the remaining land of 4 Kanals, 18 Marlas on deposit of proportionate amount of Rs,1,62,000 up to 12-11-2001. Both the preemptors will be allowed to deduct the Zar-e-Panjum plus any other deposit made already. If the "1st Pre-emptors" have deposited the amount under the decree, they need not make a fresh deposit." As is evident from the relief granted by the learned High Court, the petitions arose out of a pre-emption matter.
2. One Said Ali had sold the suit-land 82-K, 9-M in favour of Muhammad Ashraf respondent No,8 (deceased) for a consideration of Rs,1,62,000 on 6-4-1978. Two sets of pre-emptors instituted pre- emption suits, qua the said sale. The suits were tried together and were eventually decided by the Trial Judge, Gujranwala on 31-5-1982 to the effect that "The net result of my above findings and discussion is that I pass first decree of possession by way of pre-emption in favour of plaintiffs and similar second decree is granted to rival pre-emptors (defendants Nos.2 and 3) subject to payment of Rs,1,62,000 including Zar-e-Panjum and against the vendee/defendant No,l. The plaintiffs are ordered to deposit pre-emption money less Zar-e-Panjum on or before 30-6-1982, otherwise their suit shall be deemed to have been dismissed with costs and in that case second decree holders/rival pre-emptors are directed to deposit preemption money of Rs,1,62,000 less Zar-e-Panjum on or before 31-7-1982, failing which their suit shall be deemed to have been dismissed with costs." The appeals filed there-against by Allah Ditta and Sana Ullah were dismissed by the learned Additional district Judge, Gujranwala on 17-3-1992. It is thus that the above mentioned Revision Petitions had been filed before the Lahore High Court, Lahore. The judgment rendered by the learned High Court dated 5-10-2001 has given rise to these direct appeals.
3. At the very outset Mr. Malik Muhammad Qayyum, Senior Advocate Supreme Court, the learned counsel for the appellants has drawn our attention to paragraph 4 of the judgment of the learned High Court to contend that an application (Civil Miscellaneous No,1-C of 1993) for seeking amendment in the plaint had been filed, but the same was dismissed on the assumption as if Mr. Zafar Ali Shah Advocate was the counsel for the present appellants and that a pre-emptor cannot add to his qualifications by amending the plaint beyond the period of limitation. It is contended that the view upon which the application has been rejected was erroneous in as much as the amendment in the pleadings could be sought at any stage of the proceedings in view of the legal position stated in Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345, Muhammad Anwar and 3 others v. Allah Bakhsh and another 1986 SCM R 1575 and Muhammad Abdullah Khan Niazi v. Rais Abdul Ghafoor and others PLD 2003 SC 379 and even in a pre-emption suit. Mr. Gul. Zarin Kiyani, Advocate Supreme Court the learned counsel for the contesting respondents has serious objection as to the conduct of the appellants and vehemently contests such a move of seeking amendment in the plaint at such a belated stage. It is contended that since the respondents had no notice of that application, no reply was filed before the learned High Court to contest the same.
4. The perusal of application i,e,' Civil Miscellaneous No,1-C of 1993 shows that para.5 of the plaint was sought to be amended to add the qualifications. This application was filed by the respondents Nos.1 and 2 in the High Court (the appellants here) which was ordered to be heard along with the main petition as is evident from order dated 2-10-1994. No notice thereof had been ordered to the other side. It was ultimately rejected by means of observations in para.4 of the judgment, which is as follows:--- "It may be noticed that the petitioners have also filed an application under Order VI, rule 7, C.P.C. For amending the plaint so as to include the assertion of being owners in the Patti and Khata. During the course of hearing, Mr. Zafar Ali Shah did not utter anything in support of the application. I am afraid, it otherwise cannot be permitted at this stage as the period ago. It is settled that a pre- emptor cannot add to his qualifications by amending the plaint beyond the period of limitation.
This application, therefore; is rejected."
5. After hearing the learned counsel for the parties, for the view that we have formed and expressed in the Court, we are refraining from making any comments or observations, lest it may affect the stance of either of the parties. Needless to observe that the application, which had been filed required to be decided in accordance with law i,e, Muhammad Anwar and 3 others v. Allah Bakhsh and another (supra) and outright rejection thereof was not warranted. There also appears a sort of misconception as if Mr. Zafar Ali Shah Advocate was the counsel for the applicants, whereas in fact he was the counsel for the revision petitioners in the High Court. The proper decision of the said application would have possibly materially affected the result of litigation. The same, therefore, need to be heard and decided. Perhaps we could have heard the matter here and it was also pondered over, but on consideration it has been left for the learned High Court to deal with the matter as it is not desirable to deprive the said Court to have expressed the view and adjudicate the matter. There may also be possibility that the High Court remits the matter to the lower Court, but it all depends upon the stance of the parties that they take before the said Court. It is thus left to the good judgment of the learned High Court to proceed in the matter as it may deem fit in accordance with law. Accordingly the impugned judgment is set aside, the revision petition will be deemed pending before the High Court enabling it to decide the application (Civil Miscellaneous No,1-C of 1993) after affording due opportunity to contest the same by filing reply thereto, so that the other side may take such pleas as warranted i,e, the conduct of the appellants.
The matter being fairly old one, it is expected that it will be heard and decided by the learned High Court, at some early date.
5. Both the appeals are allowed in the above terms. No order as to costs.