MUHAMMAD AMEER BHATTI, J. --- This Constitution petition is directed against the order dated 22.12.2009 passed by the respondent No. 3, whereby while accepting the application under Order VII, Rule 11, C.P.C. Filed by respondent No. 2, rejected the plaint of the petitioners.
2. By virtue of registered sale-deed No. 384-1, dated 05.10.2007 regarding the land measuring 107-Kanals, 17-Marlas situated in the Revenue Record in Khewat No. 3 Khatoni No. 7 to 10, situated at Chak No. 75/S.B., Sargodha purchased the said land by respondent No. 1. The petitioner after making the Talaba-e-Muwathibat, issued the notice of Talab-e-lshhad to respondent No. 1 on 30.10.2007 as envisaged by Section 13 of the Punjab Pre-emption Act.
3. The respondent No. 2 with the connivance of respondent No.1, filed a suit for pre-emption on 11.11.2007 and by filing the conceding written statement, the learned Trial Court vide judgment dated 06.12.2007, decreed the suit in favour of respondent No. 2.
4. The petitioner while exercising the Talab-e-Khasoomat filed a suit for possession through pre- emption on 04.02.2008, which was contested by the respondents by way of filing their written statement. During the pendency of this suit, respondent No. 2 filed an application under Order VII, Rule 11, C.P.C. On 26.11.2008. The learned Trial Court after obtaining the reply of the application from the petitioner dismissed the same vide order dated 02.06.2009, whereof respondent No. 2 filed the revision petition before respondent No. 3. The learned respondent No. 3 vide impugned order dated 22.12.2009 accepted the revision petition, resultantly, the application under Order VII, Rule 11, C.P.C.
Was accepted and the plaint of the petitioner was rejected.
5. The learned counsel for the petitioner contends that learned respondent No. 3 has rendered the impugned order in complete oblivion of the facts and law of the case. It is further contended that the collusive decree obtained by the respondents could not defeat the rights of the petitioner, as such the same has no binding force and ineffective against the rights of the petitioner. Further contends that the observation of the learned respondent No. 3 that remedy by way of filing of the application under Section 12(2), C.P.C. Was maintainable for setting aside the decree which has not been availed by the petitioner, is totally misconceived and illegal, therefore, the order/judgment rendered by respondent No. 3 is not sustainable in the eye of law. Reliance is placed on Muhammad Sadiq v. Shahid. Parvaiz and 6 others (2003 YLR 79) and (2005 M LD 207).
6. Conversely, the learned counsel for the respondents contends that the writ petition is not maintainable against the Revisional order of the learned District Judge, as the order passed by learned respondent No. 3 is neither illegal nor has been passed without lawful authority. Reliance is placed on Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 S.C.131), Muhammad Khan and 6 others v. Mst.
Ghulam Fatima and 12 others (1991 SCM R 970). Further contends that unless the decree passed in favour of respondent No. 2 is set aside, the suit of the petitioner is not maintainable, therefore, the petitioner should have filed the application under Section 12(2), C.P.C. Instead of proceeding with his suit. Reliance is placed on Abdur Rauf and others v. Abdur Rahim Khan, Advocate (PLD 1982 Peshawar 172), Sardar Bakhsh v. Mst. Sahib Khatoon (1988 CLC 2037).
7. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
8. In a case reported as Muhammad Sadiq v. Shahid Parvaiz and 6 others (2003 YLR 79), the suit for preemption after receiving the notice from the rival pre-emptor was filed and got decreed by giving conceding statement and subsequently in the suit of the rival pre-emptor, objection was raised about the non-maintainability of the suit in the presence of the decree in favour of one pre- emptor. The facts and circumstances and the law points involved in the case in hand are absolutely identical. Therefore, by following the dictum laid down by this Court in the judgment Supra, reproduced hereunder:---
(d) Punjab Pre-emption Act (IX of 1991)-- ---Ss. 5, 8 & 9---Civil Procedure Code (V of 1908), S. 12(2)---Two suits for pre-emption in respect of sale---Petitioner's suit was decreed on 3.4.1991 on the basis of conceding statement of vendee, whereas respondent filed suit on 2.4.1991 against vendee in respect of same sale, who in written statement disclosed the factum of decree in favour of petitioner---Respondent then impleaded petitioner as defendant in his suit---Trial Court found both petitioner and respondent equally entitled to pre-empt suit-land and decreed suit of respondent accordingly while declaring decree in favour of petitioner as collusive and ineffective against rights of respondent---Contention of petitioner was that decree in his favour could be challenged only by filing application under S. 12(2), C.P.C. But not in the present suit---Validity--Suit of petitioner was pending, when respondent had filed suit on 2.4.1991---Joint hearing and decision of both such matters was, thus, necessary--- If petitioner was assumed to have knowledge about filing of suit by respondent, even then decree obtained by him would be affect right of respondents for having brought suit during limitation period---Petitioner had collusively obtained decree, because respondent had issued notice of Talb-i-lshhad to vendee, who on coming to know of his intention to pre-emption sale had hastily entered into a settlement with petitioner and conceded his suit---Such collusive decree could not defeat rights of respondent, who was not supposed to challenge the same separately under S. 12(2), C.P.C.---High Court dismissed revision petition in circumstances.
'9. I am fully in an agreement with the dictum laid down in this judgment (being perfectly indistinguishable), therefore, this petition is accepted. The order of respondent No. 3 is declared to be contrary to the dictum laid down by this Court reported Supra. Consequently, the order of learned respondent No. 3 is set aside. The suit of the petitioner shall be deemed to be pending before the learned Trial Court, which shall proceed with the case strictly in accordance with law.
Parties are directed to appear before the learned S.C.J. Sargodha on 10.07.2012, who shall take on this matter either himself or entrust it to any learned Civil Judge for adjudication of merits.
10. With this direction, this petition stands accepted. .