ABDUR REHMAN KHAN, J.--By Mutation No.1501 sanctioned on 13-5-1977 the petitioner Muhammad Ayub purchased the property in dispute. Two suits were filed before the Civil Judge to pre-empt this sale. The suit instituted by Muhammad Afzal respondent No.l was allotted No.106/1. Of 1978 while that brought by Muhammad Salam respondent No.2 was numbered 32/1 of 1980. The learned trial Judge consolidated both these suits and conducted A proceeding in, Suit No.106/1 and ultimately on 12-6-1980 decreed the suit of respondent N.2 on the basis of co-sharership while dismissed that of respondent No.l as he lacked the qualification of being co-sharer in the suit land. However, the said successful pre-emptor failed to deposit the pre-emption amount within the time given in the judgment and, therefore, his suit stood dismissed. It is to be mentioned here that respondent No.l had although challenged the judgment in appeal but later he withdrew the appeal on 2-7-1980. It was on 10-7-1978 that respondent No.l submitted an application although not indicating therein the provision of law under which it was submitted but it was presumably under, section 151 read with Section 152 of the Civil Procedure Code as was treated by the learned lower Courts. In this application it was solicited that the present suit of the rival successful pre-emptor stood dismissed for his default in deposit of pre-emption amount within the time allowed by the Court, therefore, the suit of the applicant/rival pre-emptor should be revived and decreed in his favour. The learned Senior Judge by his order dated 15-2-1982 in terms of Section 151 when read with Section 152, C.P.C.
Accepted this application and ordered re-trial of this suit, "to determine whether the plaintiff-pre- emptor has got superior right of pre- I emption or not." This order was challenged in revision before the learned District Judge but the revision was dismissed on 28-10-1984. In the instant writ petition these two orders of the learned Senior Civil and District Judge dated 15-2-1982 and 28-10-1984 respectively have been impugned with a request that these may be quashed and consequently the application submitted by respondent No.l for revival of his suit be dismissed.
2.The learned counsel arguing for the writ petitioner submitted that the Court of Senior Civil Judge had become functus officio in the matter and was not competent to exercise power under section 151 or for that matter under section 152 C.P.C. It was, therefore, urged that the learned lower Courts have exercised! Jurisdiction not authorised by law. It was also submitted that in view of the latest Supreme Court decision that no pre-emption decree can be passed in the case of the present nature, therefore, the trial Court would merely indulge in futile exercise in dealing with the case. In this respect certain authorities were also referred but the facts and circumstances thereof being distinct and distinguishable than the facts involved in the present case, therefore, there is no need to refer to them. As against this the learned Advocate representing the respondents submitted that the trial Judge had violated mandatory provision of Order 20, Rule 14 while dealing with the rival claims in pre-emption cases and as the omission has been supplied and the illegality cured through the impugned orders, therefore, the exercise of writ jurisdiction in such circumstances would neither be legal nor equitable.
3. We considered the significance of the submission of either sides while keeping in view the provision of the relevant law and the limits under which the exercise of writ jurisdiction is permissible.
4. Order 20, Rule 14, sub-rule (2) prescribed the form of the decree which is to be passed in case of rival pre-emption. The relevant clause 2(b) reads:-- "If and in so as the claims decreed are different in degree that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the provisions".
5. The learned trial Judge while passing the decree in favour of respondent No.2 on the basis of co- sharership omitted to determine the pre-emptive rights of respondent No.l which was based on the qualification of contiguity. The learned trial Court under the said provision of law was required to have adjudicated the rights of both the rival pre-emptors and to have adopted the course as prescribed in the said rule. It is thus obvious that at the that time a clear provision of law was violated by the Court without any fault of respondent No.l. All these subsequent litigations and complication would not have arisen if at that time the relevant laws have been kept in view.
Through the impugned orders this illegality has been cured and the wrong done has been undone.
It cannot be disputed that writ jurisdiction cannot be invoked against an order whereby an illegal and void order has been set aside. It appears that very equitable and fair order in peculiar circumstances of this case has been passed which is also in consonance with the justice of the case. Moreover, the petitioner has not been able to show that clear legal right which can be adjudged without indulging in controversy and vexed question relating to the application of one provision Of law as against other which exercise cannot be undertaken in discretionary relief of writ jurisdiction. We are not inclined to interfere in the just and equitable orders impugned in this writ petition.
The objection of the learned Advocate for the petitioner that in view of Supreme Court dictum the suit of respondent No.l cannot be decreed by the lower forum has neither been agitated before the original Court nor before the Revisional Court. We would not, therefore, give any finding on this point. The petitioner would be at liberty to raise this objection before the trial Court who would decide it in accordance with law.
7. This writ petition is, therefore, dismissed with no order as to costs.