' This second appeal under section 100, C. P. C. Arose out of a suit for possession through pre- emption filed by the respondents-pre-emptors against Baqa Muhammad appellant-vendee. The land in question was sold by Mat. Ata Bibi to Baqa Muhammad appellant-vendee for Rs, 1,00,,300 vide Mutation No, 592, dated 26-4-1974. The plaintiffs-respondents claimed superior right of pre- emption as against the appellant-vendee on the grounds that they were collaterals of the vendor as well as Khewatdar of the suit land. The ostensible amount of consideration mentioned in the mutation was also challenged. The appellant-vendee resisted the suit and on the basis of the pleadings of the parties the learned trial Court framed as many as nine issues and ultimately decreed the suit of the respondents-pre-emptors vide judgment and decree dated 21-7-1981. The first appeal by the appellant-vendee alto failed vide judgment and decree dated 22-11-1982 of the learned Additional District Judge, Multan.
2. In this second appeal filed by the appellant-vendee finding on Issues) No, 5 only was challenged before me. The findings on other issues were A not challenged, the same are, therefore, confirmed.
Issue No, 5 pertains to the claim of superior right of pre emption of the respondents-pre-emptors plaintiffs. In the plaint the claim made was that they being the collaterals of the vendor and being Khewatdars of the land in question were possessed of the superior right of pre-emption. In the written statement filed this claim was denied and controverted. It is important to note here that the appellant-vendee laid no claim that he himself was also possessed of any right of pre-emption whatsoever. The trial proceeded on the basis of the issues framed. On 26-7-1977 Baqa Muhammad appellant-vendee made a statement conceding the preferential right of pre-emption of the respondents-preemptors, On the same date counsel for the respondents-pre-emptors made a statement as under :- {{URDU TEXT}} ' It may be noted at this stage that except for Issue No, 5 "whether the plaintiffs have superior right of pre-emption" the onus of all the other issues was laid on the appellant-vendee. On this Issue No, 5 the material available on record is the statement of the appellant himself conceding the right of the pre-emptors ; the statement of the counsel for the plaintiffs whereby he gave up the right as against the ghair-mauroosi tenant' and produced certified copies of the revenue documents, and the statement of Muhammad Nawaz (P. W. 1) one of the pre-emptors/plaintiffs. The appellant- vendee in his evidence besides appearing himself as D. W. 4 produced Mst. Ata Bibi (D. W. 1) the vendor, Muhammad Abdullah (D. W. 2) and Muhammad son of Elahi Bakhsn (D. W. 3). Mst. Ata Bibi (D. W. 1) vendor in her statement recorded on 16-12-1978 deposed that she had sold the land in dispute for Rs, 1,00,000 and that the said sale consideration she had in fact received from the appellant-vendee. She described herself as wife of Baqa Muhammad and in view of the above description given by her she was cross-examined with respect to the factum of her Nikah.
Muhammad Abdullah (D. W. 2) and Muhammad son of Elahi Bakhsh (D. W. 3) deposed about the improvements made on the land. Baqa Muhammad (D. W. 4) in his statement besides deposing about other facts claimed that the vendor was his wife.
3. This claim that the vendor was the wife of the vendee was made for the first time on 16-12-1978 by the appellant-defendant (the vendee) while making his statement without taking any such plea in the written statement filed on 31st March, 1977. The other consequential plea that the defendant- vendee was also possessed of the superior right of pre-emption on the basis of the alleged relationship was obviously not taken in the written statement. The appellant-vendee, however, on 26-6-1979 submitted an application seeking permission to amend the written statement so as to add the plea that Baqa Muhammad being husband of the vendor was possessed of the equal right of pre-emption. This application was accepted by the learned trial Court vide order dated 26-1- 1980. This order was then challenged by the respondents by filing a revision petition under section 115, C. P. C and the learned District Judge vide order dated 13-10-1980 set aside the order dated 26- 1-1980 and dismissed the application for amendment of the written statement. The learned District Judge in his revisional order inter alia observed that the defendant-appellant was bound by his statement made on 26-7-1977 whereby he admitted the superior right of pre-emption of the pre- emptors and that he cannot take a contrary stand after making the said admission and that he cannot be permitted to approbate and reprobate. The order passed in revisional jurisdiction by the learned District Judge was then questioned by invoking the constitutional jurisdiction of the High Court by filing Writ Petition No, 11234 of 1980 but this petition was dismissed in limine vide order dated 15-11-1982. The last important fact to be noted is that the respondents-pre-emptors vide their statement dated 7-7-1981 accepted Rs, 1,00,000 as the sale consideration and in view of this admission the preemption money was fixed at Rs, 1,00,000. This brought to an end the controversy under Issues Nos. 6 and 7. This is how the learned trial Court accepting the superior right of the respondents-pre-emptors decreed their suit.
4. Learned counsel for the appellant-vendee argued that the appellant-vendee cannot be bound down with the admission as the same was erroneous having been made under misconception of law. It was added that as a matter of fact the trial Court did not act upon the said admission as it called upon the respondents-plaintiffs to prove their case otherwise than by the admission. In support of this assertion reliance was placed on the statement of the learned counsel for the respondents-pre-emptors dated 26-7-1977, where under he had produced certain documents in proof of the claimed preferential right. It was also argued that Mst. Ata Bibi when appeared as a witness described herself as the wife of Baqa Muhammad and Baqa Muhammad also in his statement deposed that Mst. Ata Bibi was his wife and that there being no evidence whatsoever in rebuttal of this plea on record the version that Mst. Ata Bibi was the wife of the appellant-vendee should have been accepted and consequently the Suit was liable to be dismissed as the vendee- appellant was shown to have possessed right of pre-emption superior to that of the respondents- preemptors, Learned counsel also argued that despite the order dated 13-10-1980 passed in revision whereby the application for amendment of the written statement Is as dismissed and despite the dismissal of the writ petition, the appellant-vendee is entitled to raise the plea that the vendee was possessed of the superior right of preemption being husband of the vendor and that the Courts are bound to give effect to the said plea as it remained un rebutted on record.
5. Learned counsel for the respondents-pre-emptors in reply argued that the plea that the trial Court did not act upon the admission and in fact called upon the respondents-pre-emptors to prove their case otherwise than by admission is without any foundation for the reasons that firstly no such order was ever passed by the learned trial Court and secondly this plea is not available in view of the order passed in revision. He argued that the appellant-vendee was held bound by the admission made by him and it was on this basis that he was not allowed to amend his written statement so as to take the plea that Mst. Ata Bibi vendor was his wife.
6. I have considered the respective arguments of learned counsel for the parties. The plea that the trial Court preferred not to act upon the admission of the appellant-vendee and as a matter of fact called upon the respondents-pre-emptors to prove their case otherwise that by admission is not borne out from the record. No such order was passed by the learned trial Court requiring the respondents-pre-emptors to prove their case otherwise than by the admission. The statement of the learned counsel whereby he produced certain revenue documents which can be used for proving the claimed right of pre-emption is no proof of the fact that the learned trial Court had called upon the respondents-pre-emptors to prove the claimed right by production of evidence. It will be seen that out of the eight issues framed the onus of only one issue was placed on the respondents-pre-emptor. The rest of the issues were to be proved by the appellant. In proof of that issue the evidence need not have been produced through the statement of the learned counsel in view of the clear and unequivocal admission of the appellant-vendee. Thereafter, the evidence of the appellant-vendee was produced and in the said evidence Mst. Ata Bibi appeared as D. W. 1 and while describing herself she gave the name of Baqa Muhammad as her husband's name. The description part of the statement of a witness canot be treated as a part of the sworn deposition.
Moreover, as held in Siddik Mahomed Shah v. Mt. Saran and others (1), no amount of evidence can be looked into upon a plea which was never put forward. This very plea cannot now be raised in view of the later development. It will be seen that C permission to include such a plea in the written statement was sought but was finally refused by the dismissal of the amendment application vide order dated 13-10-1980 passed in revision by the learned District Judge, Multan. This revisional order was assailed in constitutional jurisdiction but was not interfered with. The plea that Mst. Ata Bibi was the wife and as such the appellant-vendee was also possessed of the superior right of pre- emption being the husband of the vendor cannot be in the circumstances of the case allowed to be taken. If this plea is not available to the appellant then in view of the admission of the appellant-vendee there is nothing to defeat the pre-emption suit of the respondents-pre-emptor.
The decree passed in favour of the respondents-pre-emptors as such cannot be objected to on any valid ground.
7. The last submission of the learned counsel for the appellant-vendee may now be noticed. It was argued that despite the dismissal of the amendment application by the revisional Court vide its order dated 13-10-1980, the first appellate Court as well as this Court in second appeal can examine the legality or propriety of toe order passed on the amendment application. Learned counsel relied on section 105, C P. C and argued that the legality or propriety of non-appealable orders passed during the progress of the suit can be agitated in appeal to be filed against the final decision made in the suit. This right, it was argued, can be availed of despite any order passed in revision during the pendency of the suit. To support this plea reliance was sought to be placed on the observations made in the case of Abdul Aziz Shah v. Abdul Ghafoor (2) and more particularly the following observation :- "Applying the test laid down in this case an order which allows an amendment of the plaint after juridically considering the facts can also be said to be a case decided. However, this exercise is now academic as in an appeal against a decree all the questions raised before the trial Court can be reagitated and disposed of by the appellate Court."
' Learned counsel pointed out that in this precedent one of the parties had filed a revision petition under section 115, C. P. C in the High Court though the revision did not succeed. He added that despite the order passed
(1) A 1 R 1930 P C 57 (2) 1985 SCMR 221 in revision the learned Judges of the Supreme Court observed that in an appeal against the decree all the questions can be agitated and disposed of by the appellate Court. The observations relied upon by the learned counsel cannot be given the interpretation and meaning which the learned counsel wanted to give. It will be noted that in the very next line of the quoted observations the learned Judges added that the High Court also held so while dismissing the revision application.
The judgment, if read as a whole, would show that the learned Judge of the High Court when approached in revision held that the revisional jurisdiction was not attracted as the order challenged in revision did not amount to a case decided. He, therefore, refused to allow the invocation of the revisional jurisdiction. The learned Judge of the High Court had further observed that the matter being challenged in revision can be agitated in appeal against the decree. It is true that under section 105, C. P. C. Every non-appealable order can be attacked in an appeal against the final decree provided there is error, defect or irregularity in such an order and such error, defect or irregularity has effected the decision of the case. Here reference may also be made to section 99, C. P. C. Under which an appellate Court can vary a decree or remand a case on account of any error, defect or irregularity in the proceedings affecting the merits of the case. At the same time the opening words of section 105, E C. P. C. Cannot be ignored. These words are "Save as otherwise expressly provided" Section 115, C. P. C. Is the section which gives the power of revision to the revisional Court to call for the record of any case and make such an order in the case as it thinks fit on the basis of the three grounds given in the section itself. So under the scheme of law the order from which an appeal is not allowed can be attacked in revision provided the order amounts to a case decided and can be shown to be suffering from any of the three jurisdictional defects mentioned in section 115, C. P. C. Reference in this behalf may be made to Umar Dad Khan v. Tila Muhammad Khan (1). It is, therefore, apparent that the question arising the pendency of the suit, which stand decided and settled under the order of a revisional F Court cannot be allowed to be reagitated in appeal filed against the decree. At this stage reference may be made to the case of Akhtir Islam v. Zulfigar All (2), wherein learned Single Judge observed that "when the High Court declines to interfere in revision and dismisses it in limine it cannot be said that the question before this Court has been heard and finally decided for the reason that the opposite party is not before the Court at motion stage and the mere refusal of this Court to exercise jurisdiction of supervisory nature under section 115 of the Civil Procedure Code does not mean that the decision assailed in the revision petition has been in any manner affirmed by the High Court". This judgment was appealed against and the learned Judges of the Supreme Court while setting aside the judgment of the High Court expressly recorded a note of disagreement to the afore quoted observation of the High Court in the following words.
"We would add that we must not be understood to agree with the view of the learned Single Judge that the order of the High Court on the vendee's earlier revision, dismissing the petition, has merely a supervisory quality, and does not constitute a rejection of the contention raised in the ground of revision."
By reading the two judgments of the Supreme Court, one in the case of Abdul Aziz Shah v. Abdul Ghafoar and the other in the case of Zulfigar
(1) PLD 1970 SC 288 (2) PLD 1965 (W. P.) Lab. 394 Ali v. Akhtar Islam (1), the principle which one can deduce is that in cases where the revisional Court has dealt with the merits of the question raised before it and has expressed its opinion one way or the other irrespective of the fact that the revision was dismissed in limine or after contest and hearingG the parties, the decision made cannot be considered merely as of supervisory nature as such a decision does constitute a rejection of the pleas raised in the revision petition. But in cases where the revisional Court has not allowed invocation of revisional jurisdiction on one or the other ground, for instance the order passed does not amount to a case decided or the person seeking interference is not entitled to invoke the revisional jurisdiction, the order passed dismissing the revision petition in limine or refusing to exercise If revisional jurisdiction would not debar the appellate Court, from examining the error, defect or irregularity in the order passed during the progress of the suit as such an order can be assailed in the appeal filed against the final decree in view of the provisions contained in section 105, C. P. C.
8. In the instant case in the revisional jurisdiction the question of permission to amend the written statement so as to take the plea that the vendor was the wife of the appellant-vendee was considered on merits and the permission granted by the learned trial Court was withdrawn and the application for amendment of the written statement was dismissed. This order was also not interfered with in constitutional jurisdiction. This order passed in revisional jurisdiction in presence of the parties will bind the parties and will amount to rejection of the contention raised by the appellant-vendee. He, therefore, cannot repaginate the same question by making reference to the provisions of section 105, C. P. C.
9. The next result of the above discussion is that the superior right of pre-emption of the respondents-pre-emptors stood established by the very admission of the appellant-vendee and as such the decree granted to the respondents-pre-emptors is justified in law. This second appeal, therefore, fails and is dismissed with costs.
(1) PLD 1967 SC 418