1. These two connected matters; Civil Revision 318/1988 and R.S.A. 19/1988 are against a common judgment and decree dated 26-1-1988 of learned Additional District Judge, Islamabad, passed in Civil Appeals No.77-78 of 1987. Both these matters arise out of a pre-emption suit.
2. By deed of sale registered on 19-8-1976, one Allah Ditta son of Kalu sold 52 Kanals 4 Marlas of land, situated in the revenue estates of Gagri and Sihala, then part of District Rawalpindi, to Sajjad Hussain, Sabir Hussain, Yadgar Hussain, Mujtaba Hussain sons of Ibrar Hussain and Shahid Abbas son of Ghulam Abbas residents of Gagri at the sale price of Rs.80,000. On 1-9-1977, Mehrban and Walayat Khan as co-sharers in the land sold and owners of the estates sued to pre-empt the above sale and brought a pre-emption suit against the vendees in the Court of Senior-Civil Judge, Rawalpindi. The defendants--vendees resisted the suit on number of grounds, including the denial of preferential right of pre-emption claimed by the plaintiffs. On 18-12-1979, the trial Court settled following issues for determmation:- (1)Whether the suit is bad for partial pre-emption, hence not maintainable? OPD.
2. (2)Whether the suit has been incorrectly valued for purposes of court-fee and jurisdiction? OPD (3)Whether the suit is collusive inter se the plaintiffs?
3. (4)Whether plaintiffs are estopped by their conduct and words from bringing the suit? OPD (5)Whether Rs.80,000 ostensible sale price was actually paid or fixed in good faith?
4. OPD.
5. (6)If not, what was the market value at the time of sale? O.P. Parties.
6. (7)Whether plaintiffs have superior right of pre-emption qua the defendants? OPP (8)Relief.
3. As Islamabad was established as a separate District, civil cases pertaining to the new District were transferred to the Civil Courts set up at Islamabad. Consequently, in pursuance of the new dispensation, the suit file was also transferred to Islamabad, as is indicated by order dated 16-12- 1980 of the learned Senior Civil Judge, Islamabad. Since after the transfer of the suit to Islamabad, defendants failed to enter appearance before the transferee Court, despite publication in the Press, the Court marked them absent and proceeded ex parte against them on 16-9-1981.
7. Accordingly, the trial Court recorded evidence of the plaintiffs and by its judgment dated 22-9-1981, decreed the pre-emption suit of the plaintiffs upon their paying Rs.80,000 as sale price of the land to vendees by or before 21-12-1981 and m default observed that pre-emption suit shall be deemed to have been dismissed. On 18-10-1981, vendees-defendants filed an application under Order IX, rule 13 Civil Procedure Code for setting aside the ex parte decree stating that they had not been served, on transfer of the suit from Rawalpindi to Islamabad, and had no knowledge of the proceedings taken against them in the transferee Court. Plaintiffs resisted the application by denying the assertions. On 9-9-1982, the trial Court settled following issues:- (1)Are there sufficient grounds to set aside the ex parte decree dated 22-9-- 1981?
(2) Relief. And set down the case for parties' evidence. On 5-5-1983, by consent of the parties, ex parte decree was set aside subject to payment of Rs.100 as costs to the plaintiffs. After the setting aside of the ex parte decree and before the suit could proceed to its decision on merits, one Muhammad Ishtiaq son of Allah Ditta vendor who had meanwhile obtained a declaratory decree from the civil Court on 15-2-1983, in a suit instituted on 16-1-1983, against the vendees for annulment of the sale on the ground that it violated customary law, applied to the Court for being impleaded as a party to the pre-emption suit. Plaintiffs resisted the move and pleaded that decree in addition to being collusive was void altogether and produced no legal effects. However, by order dated 9-12-1984, Senior Civil Judge, Islamabad found that the applicant was neither a necessary nor a proper party to the suit and dismissed the application. Muhammad Ishtiaq filed a petition for revision in the Court of learned District Judge Islamabad and succeeded to have the order of the trial Court set aside on 9-3-1986. Learned District Judge observed that to him, Muhammad Ishtiaq appeared to be a necessary and a proper party to the suit and consequently ordered that he should be impleaded as co-defendant in the pre-emption suit. Upon this order of the Court, plaint was amended and Muhammad Ishtiaq was impleaded as defendant No.6 in the suit. He filed written statement and defended his title to the land on the basis of the decree passed in his favour on 15-2-1983. Thereafter, parties to the suit gave evidence in support of the issues settled by the trial Court. Evidence consists of oral statements and copies of revenue papers. Upon its consideration, the trial Court found for both the plaintiffs and decreed the suit in their favour subject to payment of Rs.80,000 as the sale price of the land to be deposited within one month, failing which the pre-emption suit was to stand dismissed. It was held that suit was not hit by partial pre-emption; that plaintiffs were possessed of superior right of pre-emption; that the stated sale price in the registered sale-deed was fixed in good faith and was actually paid to the vendor.
8. As far issues Nos.2 to 4, these were found against the defendants for want of evidence. Against this decision, two appeals were filed in the District Court of Islamabad. These were heard by a learned Additional District Judge, who by a common judgment disposed of both the appeals on 26-1-1988, holding that plaintiffs had no preference in regard to land situated in village Sihala but in regard to the remainder agreed with the trial Court. At this stage, it may be observed that though the learned Judge had modified the decision in regard to the land decreed to the plaintiffs but he made no change in regard to price payable for it. It is this decision that has been assailed in second appeal and revision, both by the vendees and Muhammad Ishtiaq who claims to have acquired interest on the basis of a consent decree alluded to above.
4. Of land sold, 47 kanals 19 marlas, is situate in village Gagri, and the rest measuring 4 kanals 5 marlas was in village Sihala. It is agreed that plaintiffs had no right of pre-emption with regard to the latter piece of land and to this extent, the decree passed by the learned Judge below is correct and is acceptable to the parties. It may be stated at the outset that so far as Muhammad Ishtiaq is concerned, he has no case on merits and this, even his learned counsel also concedes. Land in suit was sold on 19-8-1976. Suit for pre-emption was instituted in the Civil Court on 1-9-1977. Ex parte decree was passed in favour of the plaintiffs on 22-9-1981, which, later on, was set aside on the application of the defendants-vendees. Muhammad Ishtiaq as son of the vendor brought a civil suit for annulment of the above sale on or about 28-2-1982, stating that his father had no right to sell the land under custom except for consideration and legal necessity which, according to him, did not exist. Civil suit was decreed on consent, by the trial Court on 16-1-1983. It appeared to be a clear case of friendly about intended to elbow out the plaintiffs to the pre-emption suit. However, it was a futile endeavor which gave no real benefits to Muhammad Ishtiaq. In terms of section 2-A of Ordinance XIII of 1983, added to West Pakistan Act V of 1962, consent decree Exh.D.l passed in the suit filed under custom even if taken to have been validly made was rendered void, inexecutable and of no legal effect. It could also not be urged that consent decree was transfer of land in recognition of superior right of pre-emption. As said above, Raja Aziz-ud-Din Ahmad, learned counsel for Muhammad Ishtiaq frankly admitted that in the appeal filed by him there is no serious merit. Therefore, this appeal is bound to be dismissed. So far as petition for revision by the vendees is concerned, it raises a complex point of law in regard to the effects of ex parte decree passed on 22-9-1981 qua plaintiffs' right to succeed. Plaintiff No.l clamed pre-emption on the ground of being an heir to the vendor, co-sharer in the land sold and owner of the agricultural land in the revenue estate. Plaintiff No.2 who died in the course of the proceedings before the trial Court rested his claim on ownership of land in patti and revenue estate. It is admitted that vendees do not possess any qualification which could enable them to resist the pre-emption suit. They were neither co- sharers nor owners of the estate. Plaintiff No.l was only a co-sharer in Khatas 333, 334. Courts below decreed the suit on the sole ground of plaintiffs' being owners of the estate. Shariat Appellate Bench. Supreme Court in case of Government of N.-W.F.P. Through Secretary Law Department v.
9. Malik Said Kamal Shah PLD 1986 SC 360, ruled that the grounds of relationship to the vendor and ownership of land in the revenue estate were repugnant to Islamic injunctions. Qualification based on co--ownership was, however, found to he valid and in accord with Islamic Law. Decision of the Supreme Court took effect from 31-7-1986. In a later decision, Supreme Court, in cast; of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287, observed that no fresh pre-emption decree upon qualifications declared repugnant to Islamic injunctions could be passed by any Court after 31-7-1986, the date when the judgment in case of Malik Kamal Shah took effect. In para 5 of the judgment, Supreme Court formulated eight questions and after an extensive survey of the legal principles, gave answers to these questions. In para. 64 of the above judgment, it was observed that "if there is a different question, or any new situation arises in any particular case, the same would be resolved by the forum concerned in accordance with the principles discussed in this judgment and those underlying the questions posed and answered already rendered". None of the questions and answers referred to a case of an ex parte decree passed before 31-7-1986 but later set aside before the target date. It was not denied that on the date of the ex parte decree, there existed a valid contemporaneous law to support its making but an on the date when the decree was passed on contest, the law which gave authority to the Court to decree the pre- emption suit on the stated grounds had vanished. In this background, 1 am called upon to examine the effects of the ex parte decree later set aside, upon the rights of the parties in the light of altered situation in law. It is common ground that an ex parte decree can either be set aside under Order IX, rule 13 C.P.C. Or on appeal under section 96 of the Code of Civil Procedure. Both the remedies are concurrent and can be availed of title a decision is given in either of them. In Mohan Lal Jain v.
10. Union of India AIR (38) 1951 Ajmer 78 (1), it was ruled that where an ex parte decree is set aside, then ipso facto all the ex parte proceedings are also set aside. The trial of the suit should commence do novo as against the person in whose favour the decree was set aside and the evidence that had been taken in the ex parte proceedings should not be used against him. In Kumararu Narayanaru v. Padmanabha Kurup Gopala Kurup AIR 1953 Trav. Co. 426, .a Division Bench of the Court observed, "The effect of setting aside an ex parte decree is to restore the parties to the position they occupied previous to the passing of that decree so that the Court proceeds to determine the suit as it stood before that decree." In Phani Bhusan Mukherjee v. Phani Bhusan Mukherjee and others AIR 1957 Cal.
11. 170, it was ruled that the effect of the order setting aside the ex parte decree is that all proceedings subsequent to the stage of the defendants's non-appearance would no longer bind him. In other words, as the defendant's non-appearance was condoned by setting aside of the ex parte decree, the evidence which was recorded in his absence will not also be admissible against him. In Mst.
12. Lakshmi Devi v. Roongta and Co., and others AIR 1962 All. 381 the Court observed that a decree can be passed against the defendant only on admissible material and any evidence produced in his absence cannot be utilized against him and treated as admissible material. It was further observed that after setting aside of the ex parte decree, a party became entitled to be relegated back to the stage at which it absented and could insist that everything which has been done in its absence should be done again in its presence. A Full Bench decision from Andhra Pradesh High Court reported as AIR 1974 Andhra Pradesh 1, took the view that where an ex parte decree is set aside, all proceedings which took place subsequent to the stage of non-appearance of the defendant leading to the decree are set aside and are not binding on the defendant whose default in regard to his non-appearance was condoned by the Court. Therefore, there is unanimity of view that if ex parte decree is, set aside without subjecting it to condition, its effect is that the defendant is relegated to the position where he was placed ex parte and all proceedings taken against him in his absence cannot be held binding upon him. Effect of setting aside of the ex parte decree in my view would virtually be as if the decree had not been passed and after it was set aside, it obliged the Court to hold the trial de novo in presence of the defendant. If this be the true position which in my opinion it is, then it is not difficult to hold that pre-emption decree passed by the trial Court after 31-7-1986 on the qualification of being mere owners of the estate was in clear disregard of the law laid down by the Supreme Court in case of Sardar Ali which prohibited passing of such a decree. In identical facts, this Court in Karam and 9 others v. Hassan Ashraf and others 1989 CLC 174 took the same view. I think it enunciate a correct statement of law and I respectfully agree with it. Let me confess that the point mooted m civil revision raised a difficult question of law. As for myself, I have not been able to lay my hands upon any decided case which could assist the point involved. Likewise, learned counsel for the parties also did not bring to my notice any decided case near to the point in question. Therefore, I proceeded to examine the question on the strength of general principles of law governing the effects of setting aside of the ex parte decree. Looked at thus, it appears to me that the I decree passed by the trial Court on 5-10-1987 and affirmed in appeal can safely be taken to be a fresh decree which in the given circumstances and the law I declared could not have been made. Learned counsel for the respondents lastly argued that as plaintiff No.l was co-owner in some of the Khatas sold to the vendees, he had a clear preference to the extent of the land sold from those joint Khatas. I do not think this point can materially assist the plaintiff because in number of judgments, Supreme Court took the view that even in regard to qualification of co-ownership, pre-emptor cannot succeed in absence of performance of required `talabs' by him. In this case, there is neither averment in the plaint nor evidence to show that the required `talabs' were performed. Confronted with the above position, learned counsel argued that law as to `talabs' l could not have applied retrospectively to the pre-emption suits brought before the Courts before 31-7-1986. Contention has no merits. As said above Supreme Court in number of decisions had applied rule of `talabs' retrospectively. Therefore, by jurisprudence of precedents and imperatives of Artice 189 of the Constitution, I find it difficult to entertain the plea of non-application of law retroactively. Consequently, even on the plea of co-ownership, plaintiff No.l could not succeed.
13. In view of the aforesaid, petition for revision (C.R.318 of 1988) succeeds. Accordingly, impugned judgments and decrees passed by the learned Courts below are set aside and pre-emption suit instituted by Mehrban and Walayat Khan is ordered to be dismissed but in view of difficult nature of question of law involved, parties are left to bear their own costs. As for second appeal (RSA 19 of 1988 Muhammad Ishtiaq v. Mehrban etc., it is dismissed with costs. Copy of this judgment shall also be placed on the file of RSA 19/1988.