' The petitioner has called in question the order passed by the learned Member Board of Revenue in Revision No. ROR 1953/83, dated 24-9-1984, as well as the order passed by the learned Additional Commissioner Lahore, in appeal, on 4-5-1983.
2. Brief facts of the case are that Raza Mahmood and five others, namely, Pervaiz Mahmood, Riaz Mahmood, Ayyaz Mahmood, Shahid Mahmood and Razia Begum, sons and wife, respectively, of one Masood Khan, sold a piece of land on 11-12-1975, situated in village Sultanke, Tehsil and District Lahore, to Shah Muhammad and others, being respondents 4 to 15 in this petition. Petitioner as co- sharer of the vendees in the estate, instituted a suit for possession through pre-emption before the learned Senior Civil Judge, Lahore, which was decreed on 26-2-1978, for land measuring 734 kanals and 3 marlas. The vendees feeling aggrieved preferred an appeal against this decree before this court in RFA No.90/78. It is relevant to mention that possession of the land had been acquired by the petitioner and during the pendency of the RFA, he made payment of Rs.4,80,000 under Court order. This RFA was accepted vide order dated 21-5-1986 and the case was remanded to the trial Court for fresh decision as to price. On remand, the learned trial Court vide order dated 23-12-1986, held the sale consideration (to be paid by the petitioner to the vendees) as Rs.11 lakhs. Petitioner challenged this determination of the sale price in appeal before this Court, which is pending adjudication, being RFA No.44/87. It may be mentioned as a cursory reference that the balance of the sale price i.e Rs.6,20,000 has since been paid.
3. Respondents 1 to 3 also impugned the same sale transaction by instituting a suit for possession through pre-emption, both as tenant as well as co-owner in the estate on 8-12-1976 before the learned Civil Judge, Lahore. It came up for hearing on 9-12-1976, the learned Civil Judge was pleased to transfer the case to the Court of Assistant Commissioner, exercising powers of the Collector for hearing of the matter, since the claim was based on tenancy as well. Upon transfer, through court procedure, the matter came up for hearing before the learned Collector on 16-12- 1976. The petitioner, upon application, was impleaded as a party in the proceedings and contested the suit. Inter alia, two objections were raised, viz. Maintainability in its present form as well as the point of limitation.
' The learned Collector vide order dated 21-9-1980 (A nnexure 'C') dismissed the suit on account of limitation. Feeling aggrieved by this order, respondents 1 to 3 preferred an appeal before the learned Additional Commissioner Lahore, on 24-9-1980 which was accepted, vide order dated 4- 5-1983 (Annexure 'D'), the delay was condoned and the case was remanded to the Collector for decision on merits. Petitioner challenged vires of this order in revision before the learned Member, Board of Revenue, by virtue of revision Petition No. ROR No. 1953/83, which was dismissed in limine on 24-9-1984, being barred by time (the impugned order). Hence the present petition.
4. The learned counsel for petitioner has raised the following contentions: ' That the learned Collector had no jurisdiction to try the suit because under Order VII, Rule 10 of the Code of Civil Procedure, transfer of the suit by the learned Civil Judge to the Court of Collector, was without lawful authority;
(ii) There was no jurisdiction vested in the learned Additional Commissioner for condoning the delay because respondents 1 to 3 had intentionally instituted the suit before the Civil Courts;
(iii) The sale in question was being pre-empted on grounds;
(a) being owner in the estate; and
(b) as tenant, thus the Civil Courts had the jurisdiction.
(iv) The proceedings got transferred from the Civil Courts to the Revenue Courts with mala fide intentions.
5. On the other hand, the learned counsel for respondents 1 to 3 has contended that since special forum had been created under special law i.e. M.L.R. 115; for the enforcement of superior right of pre-emption as tenant, thus the special law prevailed over the general law and suit of respondents 1 to 3, on account of dominant superior right as tenant was rightly transferred by the learned Civil Judge to the special forum. It was also contended that under M.L.R. 115 exclusive jurisdiction was conferred on the revenue authorities, thus the learned Civil Judge was justified in transferring the case. It has been further contended that the respondents should not be penalised or prejudiced by the acts or mistake of Court, in transferring the case to the Court of Collector. In this regard, he placed reliance on the case of Shamshad Masih v. Balqees alias Waslan PLD 1979 Note 107. Lastly, it is contended that the Additional Commissioner has rightly invoked section 14 of the Limitation Act, 1908, in condoning the delay of 5 days.
6. I advert to the contentions raised by the learned counsel for petitioner in the first place.
7. I asked the learned counsel to elucidate his contention of mala fide, in particular, can he, by reference to the pleadings i.e. Petition, point out any thing which may tend to suggest even the slightest tinge of male fide on the part of the concerned authorities or otherwise substantiate the same; to which he frankly conceded that there is none. In view of the pronouncement made by the Supreme Court of Pakistan in Saeed Ahmad's case (PLD 1974 SC 151) question of mala fide must be agitated with particularity and it must be spelt out from contents of the petition itself, which in the instant case is non-existent. Therefore, there is no substance in this contention, and the same stands repelled.
' As to the contention raised by the learned counsel at (iii) (supra) I asked whether this point was taken up in appeal or in revision or does it find mention in the contents of the petition or in the order passed in Appeal or Revision, to which he replied in the negative. Therefore, the learned counsel does not press this point any further.
8. Now I come to the contention No. (i) raised by the learned counsel for petitioner. The precise submission of the learned counsel is that since in the plaint filed before the learned Civil Judge dated 8-12-1976, respondents 1 to 3 plaintiffs had sought possession through pre-emption on two counts, viz. As a tenant as well as co-owner in the estate, therefore, on the basis of co-ownership the learned Civil Judge had the jurisdiction to try the matter, consequently had no jurisdiction to act under Order VII, Rule 10, C.P.C. In the alternative, the learned Civil Judge could at its best only return the plaint to the plaintiff as contemplated by Order VII, rule 10 and had no jurisdiction to transfer the case. I have examined the contention of the learned counsel. The text of Order VII, Rule 10, C.P.C. For the convenience of ready reference is reproduced hereunder: "10. Return of plaint.--(1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
(2) Procedure on returning plaint. On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it."
' The scheme of rule 10 is that under Rule 10 (1) the Court is clothed with the authority to return the plaint for presentation to the Court in which the suit should have been instituted, whereas rule 10
(2) prescribes the procedure to follow i.e. The returning Court shall put an endorsement as to the date of presentation and the name of parties presenting it with a brief reason for its return. In the instant case M.L.R. 115 was promulgated in July 1976 and the learned Civil Judge noticing that the claim of the plaintiff is based, inter alia, on the right of tenancy which is superior right and is protected by a special law for which special forum has been created, passed the order transferring the plaint of the Court of Collector. I agree with the contention of the learned counsel to the extent that the power vested with the learned civil Judge under Order VII, Rule 10 was to return the plaint of the plaintiff, reather than passing an order of transfer. The learned Civil Judge erred in this behalf and instead of returning the plaint passed the transfer order; but the act of the Court should not be posted on the debit side of the ledger of in respondents 1 to 3; consequently, they should not be penalised nor their rights should be jeopardised on this count. I respectfully agree with the judgment cited by the learned counsel, in the case of Shamshad Masih v. Balqees alias Waslen PLD 1979 Note 107. I may hasten to add that in the instant case, but for the mistake of the Court, the issue of limitation should have not even emerged from its very inception; because had the learned Civil Judge made an endorsement on the plaint when it was presented to him on 9-12-1976, the suit was well within the time limit prescribed by law, and the plaintiff C could have taken it in ordinary course of events straightaway to the Court of Collector and thus would have been saved to face the question of limitation.
9. Since respondents 1 to 3 plaintiffs in the suit had dual capacity of asserting claim of pre-emption, but their superior right was that by virtue of the tenancy for which a special law and special forum D had been created in view of M.L.R. 115, therefore, I am of the view that the learned Civil Judge was justified in acting under Order VII, Rule 10 which caters for the mechanism for cases to be tried by the competent forum.
10. Now I advert to the second contention raised by the learned counsel for petitioner, that is, as to limitation. The sale in question took place on 11-12-1975, whereas the matter before the learned Collector was taken up on 16-12-1976. The suit at the latest should have been instituted on 10-12- 1976; therefore, prima facie, it was hit by limitation, being late by 5 days. I have considered this aspect. As stated above the sale took place on 11-12-1976 and the period of E limitation in this case having been prescribed to be one year, thus the suit should have been filed within time upto 10-12- 1976. The suit was actually filed on 8-12-1976 i.e. The period of limitation till then had not run out. The learned Civil Judge transferred the case. Since it was a transfer order, it was routed through the official machinery and was presented to the learned Collector on 16-12-1976. Since it is only the mistake of the Court, who in his own wisdom, though erroneously, instead of returning the plaint transferred the case; therefore, it has exposed respondents 1 to 3 plaintiffs to the hazard of limitation and I am of the opinion that the acts of the Court should not prejudice anybody's rights nor some body should H be penalised for such an action. The plaint was presented well within time, thus the clock of statute of limitation for all intents and purposes should be deemed to have stopped operating against them.
11. Independent of the above, section 14 of the Limitation Act, 1908 was correctly invoked in the instant case by the learned Additional F Commissioner (Revenue), Lahore since no blameworthiness is attributable to respondents 1 to 3.
12. The petitioner has impugned in this petition both the revisional order passed by the learned Member, Board of Revenue Punjab dated 24-9-1984 as well as the order passed in appeal by the learned Additional Commissioner (Revenue), Lahore dated 4-5-1983. The revision was dismissed because it was instituted by the present petitioner beyond the period of limitation and by virtue of the appellate order, case has been remanded to the learned A.C. Collector for adjudication on merits, and the law prefers that the matter should be G adjudicted on merits rather than to be disposed of on technicalities.
13. In view of the above discussion, I have come across no legal infirmity in the impugned orders and the same are accordingly upheld. The case stands remanded to the learned Collector, who will dispose it of in accordance with law on merits. In these terms, this writ petition is disposed of. There shall be no order as to costs.