This revision petition is directed against the judgment and decree of the learned District Judge, D. I.
Khan, slated 20-12-1979 whereby accepting the appeal of the plaintiff-respondent, the judgment and decree of the learned Civil Judge, dismissing the plaintiff-respondent's suit for pre-emption of the land, was set aside and the suit was remanded with the following directions:- "That in the light of Register Scheme No. 579/1/2 Exh. P. W. 1/1 and Register Scheme No. 579/2 Exh. P.
W. 1/4 the official/officials concerned be called again to get clarified as to what is the position of the rights of the plaintiff-appellant in Register Scheme, No. 579/2 Exh. P. W. 1/4 or any other document after consolidation."
2. The facts briefly stated are that the petitioners (defendant-vendees) purchased an area of 15 kanals 9 marlas bearing Khasra Nos. 2721, 2560, 2722, 2723, 2724, and 2691 as detailed in the plaint vide mutation No. 562 attested on 9-11-1975 from Mat. Ashia, daughter of Sultan, entered as the sole owner per Register Scheme Exh. PW. 1/1.
3. Muhammad Yousaf (brother of the vendor), instituted the present suit for possession by pre- emption on the grounds of contiguity and participa--tion in immunities as provided for under section 12 of the N.-W. F. P. Pre-emption Act, 1950.
4. Apart from other issues, framed by the parties, the issues with regard to the superior right of pre- emption raised by the plaintiff, and the exemption of the sale from pre-emption under section 5(c) of the said Act, raised by the defendant-vendees, are only relevant for the decision of this revision petition.
5. After recording the evidence of the parties, the learned trial Court, on the finding that the plaintiff has failed to prove his superior right of pre-emption, dismissed the suit. Similarly, the plea of.
Exemption from pre-emption under section 5(c) of the said Act raised by the defendant-vendees was also not accepted.
6. Plaintiff-respondent challenged the judgment and decree of the learned trial Court 'by filing an appeal in the Court of District Judge. On receiving the notice of appeal, the defendant-vendees also challenged the finding. On the issue with regard to the exemption by way of filing cross -- objections. The appeal as well as the cross-objections were heard together and by the judgment and decree under revision, the learned District Judge, accepted the appeal, set aside the judgment 'and decree of the learned trial Court and remanded the case with the directions as reproduced in the earlier part of this judgment. However, the cross-objections were disposed of on the short ground that on the acceptance of the appeal of the plaintiff, the same has become infructuous.
7. The learned counsel for the parties heard and record of the case perused. The learned counsel for the petitioners criticised the judgment of the learned Appellate Court on several legal and factual grounds which are to be taken one by one.
8. The legality of the order of remand was challenged on the ground that the same is not covered by any of the provisions of law embodied in Order XLI, rules 23, 24 and 25 of the Civil Procedure Code (the relevant rules which govern the power of the Appellate Court). It was also urged that in pre-emption cases, the inherent power given to a Court of law, under section 151, C. P. C. Would not have been exercised in favour of the plaintiff. He also cited several published judgments of the Superior Courts, to convince this Court that the remand of the case will mean giving second chance to the plaintiff to prove his case and to fill up the lacuna existing in the case which had resulted in the dismissal of the suit. He next argued that the order of remand in the present form is illegal and unwarranted by law inasmuch as it has provided an opportunity to the plaintiff- respondent to prove his case by bringing on record fresh evidence by examining an official of the Consolidation Department or any other concerned Authority. This limitation envisaged in the order bars the defendant-vendees from producing evidence in rebuttal.
9. The learned counsel for the petitioners also challenged the manner, in which the cross- objections filed by the petitioners, were disposed of. In the cross-objections, the petitioners have challenged the finding of the trial Court with regard to the issue of exemption. Reference was made to the finding of the trial Court on Issue No. 5 which has been disposed of in the following manner:- "So far this issue is concerned, the onus to prove the factum of exemption, is on the defendants. The defendants have not proved that they neither own one Kanal of agriculture land or vacant site nor any house, hence this thing has not been proved as required by law. The issue is also decided against the defendants."
According to the learned counsel, the trial Court was bound to make reference to the evidence produced by the parties on the issue and after applying his mind, has either to accept the same, or reject it on the reason to be recorded. This was, according to the learned counsel, illegality which should have attracted the mind of the Appellate Court. The learned Appellate Court was, in the circumstances, not justified in dismissing their cross-objections holding that the same has become infructuous specially when the order of remand was restricted to the summoning of a particular official witness.
10. The learned counsel for the respondent controverted the afore--mentioned arguments advanced by the learned counsel for the petitioners.
11. The contentions of the learned counsel for the petitioners with regard to the legality of the order of remand passed by the learned District Judge with special reference to Order XLI, rules 23, 24 and 25 of the said Order, are well-founded. Neither the order in question comes within the ambit of rules 23, 24 nor rule 25 of the said Order because none of the eventualities attracting the said provisions are available on the record. However, his objection with regard to the exercise of power under section 151, C. P. C. --in the circumstances of the case, is not sustainable. Section 151, C. P. C. Gives power to the Court to go into the rescue of a litigant in civil proceedings before him when the ends of justice demand to act when there is no special provision available in the Code, for the Court, to be relied on. Similarly, the cases arising out of pre-emption cannot be treated on a different footing from the suits of other kind of a civil nature. Civil Procedure Code is a procedure law applicable to all the cases of which cognizance is taken by the Civil Courts unless its application is curtailed by any special or local law. Once cognizance is taken of a case of a civil nature by civil Court, there can be no hesitation in applying the provisions of the Civil Procedure Code with any distinction.
Right of pre-emption is a statutory right enforceable through the Court of law. The exercise of the inherent jurisdiction is to be resorted to whenever the ends of justice demand irrespective of the fact where the case before the Court arises out of pre-emption or it is a case of other nature.
12. As far as the propriety of the order of remand is concerned, it is evident from the record that the property in dispute along with other, total measuring 139 Kanals, was owned by Sultan, father of the present respondent as well as of the vendor which they inherited through mutation No. 2 attested on 15-3-1973. This village was under consolidation and a such, the entire revenue record, during this period, was under constant change. The land proposed for allotment to Mst. Ashia Bibi, the vendor was shown in Mad No. 579/1/2 as appears from the copy of Register Scheme Exh. PW. 1/11 bearing a note that the entire `Mabai' (for consolidation proceedings) is' under review by the Additional Commissioner. Keeping in view these facts, it was not possible for the learned Appellate Court to arrive at a decision, on question of the right of pre-emption, on the basis of the record available on the file. The Appellate Court was, therefore, quite justified in remanding the case to the trial Court to remove the ambiguity available on the record.
13. With regard to the scope of the order of remand as reproduced above, the order of the learned appellate Court is not sustainable on two-fold grounds. Firstly, that, in the circumstances of the case, after they introduction of additional evidence, it is the legal right of the opposite-- party to be allowed an opportunity to rebut the same if he so desires, Secondly, that the finding of the trial Court on Issue No. 5, i. e. The issue with regard to the exemption claim, is illegal and unsatisfactory. No reference has been made to the statement of the witnesses, examined by the defendant in proof of his case, nor reference has been made to what they had stated in support of the plaintiff's contention. The trial Court has neither accepted nor rejected their evidence. In fact he had failed to apply his mind though be was required by law to do so. The appellate Court had to consider the cross-objections and had to give his finding in the light of the evidence before him. By not doing so, he has failed to exercise the jurisdiction vested in him.
By dismissing the cross-objections as infructuous, he has committed- material irregularity.
14. As a result of the above discussion, I accept this revision petition, set aside the judgment and orders of both the Court below and remand the case to the trial Court for de novo trial. Both the parties be given an opportunity to produce evidence in support of their case, if they so desire, and thereafter to decide the case on merits. The parties are left to bear their own costs.