This judgment will dispose of two writ petitions (W.P. 4382/83 and 4383/83) as the questions of law and facts involved in both these petitions are one and the same.
2. The necessary facts briefly stated are that Faqir Muhammad, petitioner, filed two suits for possession through pre-emption against the respondents/vendees claiming that he being Yakjadi and co-sharer in the Khata, was possessed of superior right of pre-emption. During the pendency of the suits, respective respondents/vendees submitted applications under Order VII, rule 11, C.P.C.
For rejection of the plaint in both the suits with the assertion that the plaint was deficiently stamped and the court-fee having not been paid despite the direction of Court, the suit was barred by time and as such the plaint was liable to be rejected. The applications were dismissed by the learned Civil Judge on 10-1--1980. The learned trial Court calculated the amount of deficient court-fee and directed the plaintiff/petitioner to make up the deficiency by 24-1-1980. The plaint was also ordered to be amended accordingly. The respondents/vendees challenged the aforesaid order passed in both the suits by filing two revision petitions. These revision petitions were accepted by the learned District Judge, Kasur vide judgment and decree dated 4-6-1980. The order of the learned trial Court was set aside and the applications under Order VII, rule 11, C.P.C, were accepted and the plaint in each suit was rejected. This led to the filing of present two Constitution petitions.
3. Learned counsel for the petitioner submitted that in view of the law laid down by Supreme Court in the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289) the learned District Judge erred in law in accepting the revision petition and rejecting the plaints under Order VII rule 11, C.P.C. Learned counsel for the respondents conceded the afore-noted plea but added that in view of the latest pronouncement of the Supreme Court in the case of Government of N. W. F. P. v. Malik Said Kamal Shah (PLO 1986 SC 360) and Sardar A.I etc. v. Muhammad A.I etc. (PLD 1988 SC 287), both the suits cannot succeed and as such trial of the suits on merits, will be an exercise in futility. Learned counsel for the petitioner in view of the afore-quoted judgments of the Supreme Court has nothing to urge in reply.
4. The rejection of the plaints in both the suits by the learned District Judge in exercise of revisional jurisdiction cannot be sustained in view of the judgment of the Supreme Court in Siddique Khan's case (Supra). I would have, therefore, set aside the judgment and decree dated 4-6-1980 of the learned District Judge passed in both the suits but that will be of no avail to the petitioner/plaintiff as his suits in any case are bound to fail. No doubt, superior right of pre-emption on the ground of co-ownership in the Khata was claimed but concededly, plaints in both the suits did not contain the averment as to the making of Talabs in the mode prescribed by Islamic Jurisprudence. The remand of the suits for trial as such will be of no practical use and in fact all that exercise if ordered to be conducted, will be an exercise in futility. In these circumstances, it will not be appropriate to interfere in exercise of discretionary Constitutional jurisdiction. These petitions, therefore, fail and are dismissed. The parties are left to bear their own cost.