1. ' This rule is directed against the so-called decision dated 10-12-1981 given by the Sub-Judge Hattian, refusing applicant's claim for pre-emption in this revisional application. The facts constituting the case are as follows : ' The pre-emptor's brother sold the land in suit to Abdullah a Mir by caste ostensibly for a consideration of Rs, 12,000 but it was alleged by the plaintiff that only a sum of Rs, 4,000 was paid to the vendor. This sale was made on 23-2-1980 and the suit for pre-emption was brought on 22-9- 1980. During the pendency of the suit, the land pre-empted was gifted away by the transferee to his sons and in defence an objection was raised that the donees are a necessary party and to this effect an issue was also framed. The right of pre-emption of the plaintiff was admitted one.
2. However, waiver was pleaded on her part and to this effect an issue was framed and the vendee was burdened thereof to prove the same. The issues to the effect whether an amount of Rs, 4,000 was paid to the transferors or a sum of Rs, 12,000 was paid as consideration to the vendor and their onus was accordingly placed on the parties respectively. At first, the plaintiff was ordered by the trial Court to adduce evidence but despite so many opportunities afforded to her, no evidence for one reason or the other could be led by the plaintiff- preemptor. So her evidence was closed, and on closing of her evidence, it was foolishly stated by the counsel for the vendee that he did not 'want to leading any evidence as the plaintiff had not led any evidence and so the suit may be determined accordingly. On this, the Sub-Judge asked the counsel for the plaintiff as to show what he was to say? The counsel for the plaintiff it seems was mum. It was all foolish and stupid on the part of the Sub-Judge as well as the counsel who were conducting the case. The burden of proof placed on the vendee as a matter of prudence was to be discharged by him first in the circumstances of the case. The Sub Judge without further hearing the counsel for the parties dismissed the suit on the ground that as no evidence was led by either of the parties the suit shall stand dismissed for want of proof. A fact which is admitted, does not require a proof. The Sub- Judge was wrong to frame issue to the effect whether the pre-emptor has a right of prior purchase. This fact of her being a pre-emptor was admitted by the vendee and it was then that the waiver on her part was pleaded. The payment of consideration is a fact which could only be proved by the defendant who asserted it and not by the plaintiff who believed it not being paid in its entirety. The plaintiff is the sister of the vendor and the vendee is a stranger from a distinct family, who has no right of prior purchase of the land in suit as compared to the plaintiff pre- emptor. This issue was perversely decided against the plaintiff saying that no evidence was produced on this issue and so it would stand decided against her. An admitted fact was not taken in view which did not need a proof at all. Admitted tact need not be proved. This is a rule of evidence.
3. ' It was legally enjoined upon the Court to apply its judicial mind to the material on record and in arriving at a conclusion, it is to be warranted or guided by recognition of Judicial principle and if it goes out of its way to decide a case not in accordance with the material, whatever available, it acts arbitrarily and capriciously in deciding a point or points in utter disregard of the legal evidence on record. It was on record that preemptor being a sister of the uendor was entitled to right of pre-emption as compared to a stranger who is the vendee here. Thus the trial Court acted illegally. Under Order XX, rule 1 of the C. P. C., the case was to be decided after hearing the arguments. A judgment or decision given without having heard a case fully is a nullity and a decree thereof ab initio void.
4. The impugned decision cannot even be termed as a judgment in the eye of law as it did not determine the points at issue in view of the material (evidence) on record and when so-called judgment and a decree thereof is nullity in the eye of law, it is incapable of being acted upon in law and so the question for appeal against such a decision or decree may not even arise and if a party instead of filing an appeal comes direct to the High Court in revision, in my opinion, it is competent under section 115, Cr. P. C. Erroneous decision may not ordinarily be revisionable but decision based on .No matter though available on record to be deemed as a piece of evidence and being perversed entitling grave injustice and hardship to a party as was done in this case to the applicant, the High Court must interfere with such a decision in order to redress a wrong done to a party. The trend of the authorities is to the effect that when an appeal lies against a certain decision, the revision under section 115, Cr. P. C. Is not competent and some of them express the view that in the extraordinary or abnormal circumstances, as exist in this case, the High Court should interfere in revision.
5. Again, this High Court in exercise of its powers of superintendence and control under section 46(1) of the Interim Constitution, 1974 read with section 35 of the Courts and Laws Code, over all the Courts subordinate to it can come to the rescue of a party aggrieved to whom a glaring injustice was done which must be undone.
6. ' That being so, for the powers vested in me under the Constitution as well as the other law concerned, I accept this application and set aside the impugned decision and remand the case to the trial Court with the direction that the suit should be restored on its original number. The trial Court is directed to see that the plaintiff-pre-emptor is allowed to amend the plaint so as to implead the aforesaid donees as a party to whom the land in suit was transferred during the pendency of the suit accordingly and further to ask the defendant to first lead the evidence and then the plaintiff is to lead rebutting evidence and it should be seen that issues are properly dealt with by the parties concerned according to law. . Case remanded.