1. MUHAMMAD AFZAL ZULLAH, C.J.---These two matter--one a Civil Appeal and the other a petition, have arisen out of a case of pre-emption. The facts narrated at the Bar are: Noor Ahmed appellant/petitioner was one of the pre-emptors on the alleged ground of tenancy under land reforms while Allah Dad predecessor-in-interest of the respondents is a rival pre-emptor on usual grounds under the Punjab Pre-emption Act. Noor Ahmed filed a suit before the Civil Court but the plaint was returned which was presented before the Collector. His suit was decreed on 7-12-1976 with the consent of the defendant/vendee therein without impleading Allah Dad therein. Earlier on jurisdictional technical question the matter had come to the High Court in its revisional jurisdiction and an order was passed-on 22-6-1976; whereby, notice was taken of the other suit filed by Allah Dad. It was ordered to be stayed. The consent decree in favour of Noor Ahmed was brought under challenge by Allah Dad (during the time that his own suit remained stayed), before the higher forums on the revenue side upto the Board of Revenue but without any success. The successors- in-interest of Allah Dad who had in the meanwhile died then filed a Writ Petition in the High Court which having been allowed on 10-4-1991 the decree in favour of Noor Ahmed was set aside and the case was remanded to the Collector for fresh decision by impleading the rival preemptor side; namely, successors-in-interest of Allah Dad.
2. In so far as the suit of Allah Dad is concerned it was further stated at the Bar that after achieving the success on the revenue side Noor Ahmed got the revision dismissed in the High Court in March, 1978 with the result that Allah Dad's suit proceeded in accordance with law and ultimately a decree was passed in his favour on 4-2-1985 with the condition, that it will inure for the benefit of Allah Dad only if the decree passed by the Collector in favour of Noor Ahmed was set aside. Allah Dad brought under challenge this condition before the appeal Court but without any success. He then filed second appeal before the High Court which was allowed on 10-4-1991 by a common judgment rendered in appeal and in the writ jurisdiction of the High Court in connection with the suit of Noor Ahmed. The operative part of the judgment of the High Court rendered in appeal reads as follows:- - "The consequence will be that the suit of Noor Muhammad will be deemed to be pending before the Collector; that suit will be decided afresh after impleading the legal representatives of Allah Dad as defendants and after affording opportunity to the parties to lead evidence on the issues arising out of the parties' pleadings.
3. As a tenant had, under the law then in force, the first right of preemption, the decree of the Civil Court in Allah Dad's suit will be subject, to the decision by the Revenue authorities in Noor Muhammad's suit. In other words, if the suit of Noor Muhammad is decreed and the pre-emption money is paid in pursuance of the decree, then the suit of Allah Dad shall stand dismissed and if the suit of Noor Muhammad is dismissed, then the decree in favour of Allah Dad (or his legal representatives) shall stand in terms of the Civil Court's judgment dated 4-2-1985. R.SA. No.106 of 1989 is disposed of accordingly."
4. With the foregoing resume of the facts and circumstances involved in the two channels of litigation reaching upto the High Court, learned counsel for Noor Ahmed has urged that leave to appeal be granted in the civil petition wherein the judgment of the High Court in its writ jurisdiction has been brought under challenge. 11' leave. Is granted then the learned counsel would take the position that the remand order passed by the High Court is liable to be set aside; if that, is so, the decree in favour of Noor Ahmed would remain intact and thus the condition imposed upon the decree granted to Allah Dad's legal representatives would not be satisfied and resultantly the suit of Allah Dad would stand dismissed. In so far as the approach of the learned counsel on face is concerned it seems logical. On the other hand, however, the other position in reality is that if the remand order is found valid and just; on account thereof the same judgment of the High Court regarding setting aside the decree passed in favour of Noor Ahmed, will have to be upheld and leave to appeal would have to be refused. In that eventuality the _ decree in favour of Noor Ahmed being annulled, the condition attached to the decree passed in favour of Allah Dad would automatically be satisfied and subject to the other conditions including deposit, Allah Dad's suit shall stand finally decreed.
5. While dealing with the merits learned counsel for Noor Ahmed analysed the judgment of this Court in Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 153 so as to contend that although for purpose of limitation section 30 of the Punjab Pre-emption Act could be lifted out to be applied to the pre-emption suits under the land reforms before the Collector, the- other provisions of that Act like section 28 which has been utilised in the impugned judgment could not be so lifted out,and applied to the proceedings before the Collector. Learned counsel for the respondents in this behalf also relied on Zahoor Alam v.. Fazal Hussain 1991 SCM R 763. In so far as the interpretation of section 28 is concerned it would support the proposition that in this case. Allah Dad or for that matter, his successors-in-interest, would not at all be hound by the decree passed in favour of Noor Ahmed unless he or they were made parties to the suit of Noor Ahmed. However, more direct judgment based on the Islamic principles which goes against the contention of the learned counsel for Noor Ahmed is in Syed Phul Shah v. Muhammad Hussain PLD 1991 SC 1051 in which same situation had arisen, vis-a-vis, two separate forums for adjudication of the.Same pre-emption matter. Moreover, since :1981 this Court has applied the principles laid down in the case of Muhammad Khan not only where the question of limitation was involved but also regarding some of the remaining provisions of the Pre-emption Act dealing with the procedures and proceedings under the law of pre- emption. Having failed on the main point learned counsel for Noor Ahmed tried to argue that on merits also notwithstanding Noor Ahmed's decree, being a consent decree, it would stand the test of scrutiny; and that, the other rival preemptor side has not been able to find any flaw with the plea of Noor Ahmed that he had a preferential right on the basis of tenancy. When pointed out that Allah Dad and his successors-in-interest have not been allowed a fair chance of contest including the contest relating to the presumptions attached to the revenue records it will be unfair to them if their plea is rejected without a fair trial. This argument on merits thus also failed. Lastly there is also question as to whether leave to appeal should be granted to Noor Ahmed who wants to deny the hearing to a rival pre-emptor and whose writ petition has been dismissed by the High Court on this very issue.
6. After hearing the learned counsel on all this; as to whether, Noor Ahmed in this context is entitled to any discretionary relief in the Writ jurisdiction of the High Court or in the discretionary jurisdiction of this Court under Article 185 to grant leave to appeal, learned counsel for Noor Ahmed could not advance any satisfactory answer.
7. In the light of the foregoing discussion we find no force in the petition for leave to appeal and the same is dismissed with the further result that his Civil Appeal also is dismissed. There shall be no order as to costs.