Iftikhar Muhammad Chaudhry, C.J.--This petition has been filed seeking review of the judgment of this Court dated 8th November 1999 whereby the judgment of the High Court dated 18th December 1994 has been maintained, holding that it does not suffer from any infirmity.
2. Precisely stating facts necessary for disposal of the case are that the petitioner instituted a suit for pre-emption, as back as on 20th September, 1992, in respect of property, description and measurement whereof has been given in the plaint. It appears that vendee-Sawab Jan, on the basis of the mutation, Bearing No, 10551, dated 24th May, 1992, attested in his favour, regarding an area of eight kanals, sold a piece of land to Fazal-e-Akbar son of Muhammad (petitioner/plaintiff), who submitted an application for impleading him as party before the trial Court, which was allowed on 24th September, 1993 and Fazal-e-Akbar was impleaded as party. Appeal was filed before the District Judge, Mardan, which was dismissed on 23rd November, 1993, as a result whereof, revision petition was filed before the High Court which was accepted vide Judgment dated 18th December, 1994.
3. It is to be noted that according to the learned High Court, subsequent vendee-Fazal-e-Akbar could only have been impleaded within the prescribed period of limitation as provided under Section 31 of the NWFP Pre-emption Act, 1997 (hereinafter referred to as the Act, 1997"). The judgment further explains that originally a period of one year was prescribed under Section 31 of the Act, 1997 for filing of the pre-emption suit but subsequently the period was reduced to 110 days, therefore, as the application is barred by limitation i,e, being filed beyond the period of limitation, the same is not maintainable; as a result whereof the revision was accepted. The petitioners preferred appeal before this Court bearing Civil Petition No, 97 of 1995, which has been dismissed by means of judgment under review.
4. Learned counsel for the petitioner contended that once a suit for pre-emption has been instituted within time then the question of limitation for subsequent vendee would not be the same as prescribed for filing of the suit and no sooner, it comes into the knowledge of the pre-emptor that the sale had taken place, fie is free to bring an application for impleading such a person as party and in this behalf the Civil Judge and the District Judge, in the instant case, have rightly interpreted the law on the subject, as such, the judgment of this Court as well as of the High Court needs to be reviewed. Reliance in this behalf has been placed on the cases of Muhammad Khan vs. Sadiq (PLD 1968 Lahore 929) and Pyare Mohan vs. Rameshwar (AIR 1980 Rajathan 116).
5. On the other hand learned counsel for the respondent opposed the review petition and contended that the re-sale by the vendee was not permissible, therefore, the learned High Court had rightly declined to make Fazal-e-Akbar as party. He has relied upon the judgment in the case of Abdul Yameen Khan vs. Ashrat Ali Khan (2004 SCMR 1270).
6. We have heard the learned counsel for the parties and have gone through the orders passed by all the Courts below. It is pertinent to mention here that in the instant case the suit was instituted within the period of prescribed limitation i,e, 120 days. Now the only question for consideration is that for the purpose of second vendee, who has purchased the property subsequently, the period of filing of suit or impleading him as party, shall run afresh or on the basis of the suit, which had already been instituted against the original vendee or he would be impleaded without taking into consideration that the sale had taken place beyond the period of limitation. On having gone through the relevant provisions of law on the subject as well as the judgments cited by the learned counsel for the petitioner. It may also be noted that an earlier judgment, in the case of Mustaqim Khan vs. Abdulah Khan and others (PLD 1951 Peshawar 1), while examining the same proposition, it has been held that:-- "Now, it cannot be denied that a right of pre-emption comes into existence as soon a sale is effected. The re-sale, therefore, does not create any new right; the right pre-exists the re-sale. I, therefore, conclude that the view of law taken in 26 Punjab Record 1908, 10 Indian Cases 367, and AIR 1930 Lah.356, should be preferred to the one taken in 1942 Pesh. L.J 43. This conclusion can be justified on other considerations also. It is admitted that if a person possessing a superior right of preemption to the pre-emptor instead of buying the suit property privately brings a pre-emption suit in respect of the same property, his suit will succeed and the pre-emptor will be non-suited.
Consequently, there is no cogent reason why the same result should not follow in case such a person instead of bringing a pre-emption suit buys the suit property out of Court from the first vendee. It is also well-established that a vendee may sell to a person who has an equal right with the pre-emptor or who has a superior right to the pre-emptor, ante litem, so as to defeat the pre- emptor's claim provided the transaction is genuine. This being so, I think it will be inequitable to permit a pre-emptor to defeat a person who has a superior right of pre-emption and to whom the suit property is re-sold within a period of limitation, simply because the pre-emptor rushes to Court immediately after a sale is effected."
The above principle has been reiterated in the judgments cited by the learned counsel for the petitioner. As far as the judgment relied upon by the learned counsel for the respondent is concerned, no law has been declared in the same as in that very case, leave to appeal was declined. It is also important to note that principle of lis pendence is not applicable to the cases, where a suit for pre-emption is already commenced within the prescribed time. Therefore, as far as the second vendee, who had purchased the property from the first vendee is concerned, his right would also be governed on the basis of the suit, which has already commenced in respect of the same property because the right of preemption has been claimed in respect of the property and not in respect of the person who had become first or second vendee.
Thus, for the forgoing reasons, we are of the opinion that the judgment under review is required to be revisited; as a result whereof the petition is accepted and the appeal filed by the petitioner is allowed. Consequently, the judgment of the High Court dated 18th December, 1994 is set aside and the case is sent back to the learned High Court, where now the matter is pending, for consideration to implead Fazal-eAkbar as respondent and then to dispose of the matter pending before it. No order as to costs.