1. This revision petition is directed against the judgment and decree of the learned Additional District Judge, Kasur dated 19th of September, 1988 affirming the judgment of the trial Court dated 25th of November, 1987 whereby the suit for possession through pre-emption filed by the respondents was decreed.
2. This suit was filed on 20th of March, 1984 with respect to a house situated in Gali Sagwakinside Pattun-Wala Gate, Kasur, which was purchased by the petitioner from its owners Sh. Shafique and others through a deed of sale registered on 6-11-1977 for a sum of Rs.6,000. The sale was pre- empted on the bass that the respondents/plaintiffs being owners of the contiguous houses, had superior right of pre-emption. This suit was decreed initially on 23rd of April, 1984 by the learned trial Court. However, on an appeal filed by the petitioner this decree was set aside and the suit was remanded to the trial Court by the Additional District Judge on 8th of October, 1985.' This order of remand was challenged by the respondents by filing F.A.O. No.199 of 1985, which was dismissed with the clarification that the trial Court shall frame additional issue and decide the same but the findings on the issues already framed would remain intact.
2. The only argument raised by the learned counsel for the petitioner in support of this civil revision was that as the suit filed by the respondents was decreed by the trial Court on 25th of November, 1987, it was violative of the law declared by the Supreme Court in Govt. Of N.-W.F.P., through Secretary, Law Department v. Said Kamal Shah PLD 1986 SC 360. According to the learned counsel, since there was no assertion of Talabs made in the plaint, no decree could be passed in favour of the respondents/plaintiffs after 30th of June, 1986. He has, in this respect, relied upon Aiwaz Khan and another v. Allah Bakhsh PLD 1988 SC 730 as also Ghulam Qadir v. Nawab Din PLD 1988 SC 701.
3. The learned counsel has further drawn my attention to the authority of the Supreme Court in Muhammad Shoib and others v. Member (Revenue) and others PLD 1988 SC 355.
3. I regret my inability to agree with the learned counsel. As already indicated the suit of the respondent was initially decreed on 23rd of April, 1984 by the trial Court but the Additional District Judge on 8th of October, 1985 remanded the suit to the trial Court. In Sardar A.I v. Muhammad A.I PLD 1988 SC 287 it was held by the Supreme Court that if once a decree was passed before 31st of July, 1986, the plaintiff would be entitled to seek its restoration regardless of the fact whether the matter was pending before the trial Court or any other forum on 30th of July, 1986. It is pertinent to refer to question No.7 posed by the Court at page 310 and the answer to that which appears at page 344 of the report:- "Q.7.Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact whether the matter is pending before the trial or any higher forum.
4. Ans. In the light of the discussion and view on the points involved, the answers to questions Nos.1 to 5 are in the negative, while questions Nos.6 and 7 are answered in the affirmative."
5. Since a decree in the present case was passed on 23rd of April, 1985, the respondent is entitled to seek its restoration notwithstanding the remand by the Additional District Judge, in - accordance with the law then prevailing. The authorities relied upon by the learned counsel for the petitioners have-no applicability to the present case.
6. H.B.T/M-1145/LRevision dismissed.
7. 1989 MLD 535 [Lahore] Before Khalil-ur-Rehman Khan, J MUHAMMAD YAMEEN KHAN and-others--Appellants versus KHUSHI MUHAMMAD--Respondent Regular Second Appeal No.25 of 1986, decided on 15th Feburary,1989.
8. Civil Procedure Code (V of 1908)--- ---O.XXIII, Rr.1 & 3--Withdrawal of suit--Plaintiff/decree-holder himself stated before Court that in view of compromise arrived at between him and judgment-- debtor, suit filed by him should be allowed to be withdrawn and dismissed---Suit allowed to be withdrawn in view of statement of plaintiff/decree-holder and judgm5361entAand and decree passed by Courts below in his favour were set aside.
9. Ijaz Feroze for Appellant.
10. Abdul Aziz Qureshi for Respondent.
11. Date of hearing: 15 February, 1989.