Sultan Khan deceased-plaintiff had filed the present suit on 16-11-1978 but as he had died during the pendency of the suit, therefore, the case was continued by Muhammad Amin Khan etc. The present petitioners who are his legal heirs.
2. In this case, possession by pre-emption, was sought in respect of the sale brought about by Mutations Nos.1170 and 1171 both attested on 20-11-1977 whereby Khan Muhammad defendant No.l had purchased the property in suit. Initially the suit was filed against Khan Muhammad alone but on 15-2-1979 the plaintiff submitted an application to amend the plaint in order to implead Karam Dad as defendant No.2- and to challenge the re-sale Mutations Nos. 1203 and 1204 sanctioned on 19-12-1978 by which the suit property was transferred to him by defendant No.l. In the amended plaint the sale in favour of the second vendee was described as ineffective on the rights of the plaintiff as it was affected after one year of the first sale mutation and the pre-emptive rights of both the vendees were denied. The suit was resisted by the defendants and the allegations given in the plaint were refuted. In the trial Court issue No.3 was framed to the effect "What is the effect of transfer by defendant No.l in favour of defendant No.2." On this issue the learned trial Judge held that the transfer in favour of defendant No.2 having taken place beyond one year, therefore, under the relevant law it would not have the effect to non-suit the plaintiff. He was found to be possessed of superior fight as against defendant No.l the original vendee and accordingly, the suit was decreed in his favour. Appeal against this judgment and decree was filed by Karam Dad the second vendee alone. In the appellate Court only issue No.2 which covers the allegation of superior right of pre-emption was argued by the parties and while deciding this issue the learned appellate Court held that the khasra number in suit and Khasra No.72 in which Khan Muhammad the first vendee is co-sharer are situated in one and the same Khata bearing No.350 according to Jamabandi placed on record and in such a case the plaintiff would have no superior right as against Khan Muhammad. In view of this conclusion the learned appellate Court reversed the judgment and decree of the trial Court and consequently dismissed the suit of the plaintiff.
3. The learned counsel arguing for the petitioner submitted that the learned appellate Court failed to appreciate the legal aspect of the case and erred in law in applying the provision of Order 41, Rules 4 and 33. It was next urged that Khan Muhammad the first vendee had slept over his rights and failed to prefer any appeal, therefore ,he was not entitled to the benefit of, the said provision of law. It was also submitted that the said Khan Muhammad had not contested the right of pre- emption of the plaintiff and he had also admitted private partition of Shamilat. In order to give strength to his submission he relied on AIR 1944 Lahore 142, AIR 1935 Calcutta 458, PLD AIR 1942 Patna 204; 1988 CLC 296; 1982 Lahore 192 and 1980 SCMR 7. The learned counsel for the respondent opposed these submissions and maintained that the decision of the appellate Court is in accord with the relevant provision of law and as such cannot be interfered.
4. I have given anxious consideration to these arguments in the light of material on record.
5. The learned counsel for the petitioner could not deny that the first vendee Khan Muhammad is a co-sharer in the suit khata and, therefore, the plaintiff could not claim superior right of pre-emption as against him. The suit was dismissed by the trial Judge on the ground that the re-transfer in favour of Muhammad Akram the second vendee having occurred after one year of the first sale is in violation of N.-W.F.P. Pre-emption (Amendment) Act, 1972. Under this provision no pre-emptor- plaintiff shall be deemed to have lost a subsisting right. Of pre-emption for the reason that the vendee-defendant has after the expiry of the period of limitation provided for a suit for pre- emption transferred the property in dispute to a person hating a right of pre-emption equal or superior to that of the plaintiff. In other words the contest was left between the plaintiff and the first vendee and after excluding the second transaction from consideration the learned trial Court was required to have determined the inter se rights of the plaintiff and defendant No.l but he failed to do so. In my view the learned appellate Court was correct in invoking the provisions of Order 41, Rules 4 and 33 in favour of the first vendee even if he had failed to appeal against the decree.
Following are the essentials for application of Rule 4:-
(a) The appeal should be against the whole of the decree,
(b) The decree should proceed on the ground common to all the plaintiffs or defendants. It could not be denied by the learned counsel for the petitioner that both these ingredients existed in the decree appealed against. Ordinarily only an appealing party is entitled to a favourable order from the appellate Court. However, m view of Rule 4 if the decree proceeds on the common ground the Court would be justified to reverse it even in case of non-appealing party. Similarly, under Rule 33 of the same. Order the appellate Court has power to pass any decree and make any order which ought to have been passed or made by the trial Court and the appellate Court is further competent to exercise such a power in favour of all or any of the respondents or parties although such respondents or party may not have filed any appeal or cross-objection. These provisions when read together 1 would indicate that a very vast discretion has been given to the appellate Court in order to do complete justice between the parties as the merits of the case may require and not to be hindered by any technical provision in this respect. The precedent decisions contained in AIR 1946 Lahore 142 is hardly relevant because the application of doctrine of les- pendis to the suit under N.-W.F.P. Pre-emption Act stands excluded by the following additions made by N.-W.F.P. Pre-emption (Amendment) Act, 1972:- "For the purposes of this section no pre-emptor-plaintiff shall be deemed to have lost a subsisting right of pre-emption by reason of the fact that the vendee-defendant has after the expiry of the period of limitation provided for a suit for pre-emption transferred the property in dispute to a person having a right of pre-emption equal or superior to that of the plaintiff. As far as the facts in AIR 1935 Calcutta 458 are concerned they have even no remote bearing on the facts of the present case. AIR 1942 Patna 204 itself admits the vast power given to the appellate Court but restricts its application in certain conditions which conditions are, however, non-existent in this case. 1980 CLC page 296 related to partition matter and which has no relevancy to the case in hand. PLD 1982 Lahore 132 lays down that the exercise of power under Rule 33 is discretionary and to be exercised with caution. There is no denying this dictum but at the same time it is also true that the exercise of this power should not be refused if justice of the case requires and where injustice is to be removed. The law enunciated in 1980 SCMR page 7 has not been derogated from rather the same had been applied in full force in this case. On the other hand, the bare reading of Order 41, Rule 4 and Rule 33 indicates that they are of the widest capacity and amplitude in order to empower an appellate Court to pass decrees according to the justice of the case. These provisions are obviously beneficial so that no legal right should be denied which the appellate Court considers proper and reasonable to be allowed within the framework of the suit. The non-fetter clause in Rule 33 is relevant for it completely avoids any condition that a party seeking its benefit should itself have filed an appeal or cross-objection. Therefore, the mere fact that Khan Muhammad the first vendee defendant No.] having failed to file an appeal against the decree of the trial Court would not by itself be sufficient to justify refusal of the exercise of power in his favour under the said rules.
The imposition of such a restriction would not only constitute a bar on the, extremely wide power given to the appellate Court by the Rules but this may amount to a direct contravention of a clear provision in these rules. Thus it is manifest that these Rules confer unfetter discretion and anything expressed in C negative or restrictive terms in precedent cases affecting its application must be construed as applicable only to the particular facts of the case to which these Rules are being applied by interpretation. However, such an interpretation cannot be extended to, any other case for an each case the application of these beneficial Rules must be made in accordance with the relevant facts. In view of these reasons it is obvious that the decision cited by the learned counsel for the petitioner would not advance his view point. Regarding the criticism of the learned counsel that the first vendee has not contested the petitioner's right of pre-emption himself. It would be sufficient to say that in his statement in Court he has definitely stated that he is co-sharer in the suit property and that the plaintiff has got no such right in it. Similarly, the vague and misconceived admission regarding the partition of Shamilat land by the said defendants cannot benefit the petitioner as according to the Revenue record the property in suit is still joint and no evidence whatsoever exists with regards to its partition. The learned appellate Court has rightly restored the right of the first vendee which he was entitled and which was unjustifiably and illegally refused to him by the trial Court. Substantial justice in terms of Order 41 Rules 4 and 33 has been done in this case which cannot be dislodged on mere technical grounds.
6. I, therefore, see no substance in this revision petition and dismiss it with no order as to costs.