1. ' This second appeal has arisen out of a pre-emption suit filed by Fiaz Hussain Shah a minor son of Ali Haider Shah, vendor.
2. ' The sale of the land in suit was made by two real brothers, namely Ali Haider Shah and All Akbar Shah.
3. ' The pre-emption is claimed on basis of relationship. And by this relationship the plaintiff is a person who being lineal descendant of Ali Haider Shah and nephew of the other vendor possesses a right of prior purchase of the suit land. Muhammad Tanveer, vendee is admittedly, a stranger who has no right of pre-emption as compared to the plaintiff. This right of the plaintiff is not denied by the counsel of the defendant-appellant and this, as a matter of fact and law as well, cannot be questioned in view of section 14 of the Right of Prior Purchase Act.
4. ' The trial Court without first examining the parties as required by Order X (1) of C. P. C. Framed the issues as under :- "(1) Whether the plaintiff has a right of prior purchase of the land in suit, as compared to the vendee defendant ? 0. P. P.
(2) Whether the plaintiff has waived his right of prior purchase, if he has such a right ? 0. P. D.
5. (Could waiver be pleaded on the part of the minor) ?
(3) Whether the price of the land in suit amounting to Rs, 25,000 was fictitious and showy and it was neither fixed in good faith nor it was paid O. P. P.
(4) In case of non-proof of Issue No,. 3, what is the market value of the land in suit ? 0. P. P.
(5) For the suit being collusive ; it is liable to be dismissed 0. P. D.
(6) Whether the suit of the plaintiff falls within the mischief of partial pre-emption and if so, what would be its effect on the suit land ?
(7) Relief."
6. ' The learned counsel for the appellant was heard.
7. After framing the issues, the trial Court ordered the plaintiff to produce evidence and for this a number of opportunities were afforded to him but he could not adduce any evidence and so his suit was dismissed under Order XVII, rule 3 of Civil Procedure Code. The decision was not made on merits. It was simply written that as plaintiff has failed to adduce Evidence as ordered by the trial Court, his suit is dismissed under Order XVII, rule 3, C. P. C.
8. On its very face, the order passed by the trial Court was wrongly made by it. The land in suit was sold to a stranger and the right of pre-emption was 8 exercised by a person who on the basis of relationship, as stated above, has a right of prior purchase, as compared to the vendee-defendant and who (pre-emptor) is appellant before me.
9. ' Issue No,. 1 did not arise at all and Issue No,. 2 was illegally framed in negative and its onus was wrongly placed on the plaintiff. Instead of it, an issue was to be framed to the effect, whether the price was fixed in good faith or paid and if it is found that the price was not so fixed or paid, the issue in regard to market value comes into play for determination of the-amount of consideration.
10. Vide section 24 of the Right of Prior Purchase Act No,. II of 1993 Bk. To ask the plaintiff first to lead evidence was just to such blood out of a turnip and thereby wasting the time etc. Of the parties and the Court itself. It was for the vendee-defendant to adduce evidence in support of his allegations contained in the written statements. It seems that the eyes were shut at the time of framing of issues and it was all done , as if all concerned were devoid of reason and prudence. The order of the Sub-Judge is bad in law. Issue No,. 1 shall stand deleted and so also Issue No,.
3. In place of Issue No,. 3, an issue in a correct form to the following effect is framed : "Whether the price of the land in suit was filed in good faith or paid?" Its onus shall lie on the defendant-vendee and rebutting evidence to it is to be adduced by the plaintiff as alleged. An appeal to the District Judge was made by the pre-emptor against the wrong order of the Sub- Judge which was accepted and the case was remanded for trial according to law.
11. ' I am at a loss to understand as to why this second appeal was preferred to this Court by the vendee defendant. If reason did not prevail in the trial Court it ought to have prevailed at least somewhere after the impugned judgment of the learned District Judge.
12. ' The Sub-Judge Mr. Mumtaz Hussain is ignorant of law under which he is to act.
13. In the circumstances above, Order XVII, rule 3 of the Civil Procedure Code could not at all be attracted for dismissal of the suit. When Order XVII, rule 3, C. P. C. Is attracted in a cane it is to be decided on merits in view of the material available on record. A man of even ordinary prudence would not act in the manner it was done by the Sub-Judge. The parties were dragged for long by the Sub-Judge on the pretext of evidence to be produced by the plaintiff which he was not supposed to lead. If the Sub-Judge could have looked into Order X, rule 1, C. P. C., before framing of issues, he would certainly not have fallen in committing a blunder which resulted in dismissal of the suit.
14. ' That being so, this appeal being destitute of any substance is dismissed in limine.