1. SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been directed against the judgment of the High Court, dated 9-5-1989 and announced on 17-5-1989, whereby the revision petition filed by the appellant, herein, was dismissed.
2. It may be stated that previously the appeal was disposed of by this Court vide its order, dated 19- 5-1991. But subsequently an application was submitted by Ch. Muhammad Taj, the learned counsel for the appellant, Walayat Hussain, that when the appeal was heard, the appellant had already died and his legal representatives were not brought on the record. Therefore, the appeal should be heard afresh. After hearing the parties, we decided to hear the appeal afresh vide our order, dated 21-10-1991.
3. This case has chequered history behind it. Walayat Hussain Shah appellant, herein, filed a pre- emption suit in the Court of Sub-Judge Kotli against sale-deed which was executed in favour of Manga, respondent, and his brother Gul Muhammad The plaintiff-appellant was directed by the trial Court to deposit 1/5th of probable value of the suit land up to 23-4-1964. However, three days earlier to the said date, i.e, on 20-4-1964, Manga, respondent-vendee, placed a compromise deed on the file of the trial Court which was arrived at between him and the pre-emptor-appellant.
4. According to compromise deed, Manga had received Rs,1,000, his share of the consideration of the land, and balance of Rs,2,000 was to be received by Gul Muhammad, the other vendee when he would appear in the Court. A prayer was made that a decree according to the terms of compromise might be passed in favour of the plaintiff to the extent of his interest in the land. His statement was also recorded by the Court on the same day but no order was passed regarding the compromise. After some adjournments the case was dismissed in default on 2-10-1964.
5. However, the dismissal order was set aside on the application of the appellant on 9-4-1965, ex parte. On 7-6-1965, Gul Muhammad (now dead) sought dismissal of the suit on the grounds that
(i) the appellant failed to deposit 1/5th; (ii) the dismissal of the suit for non-prosecution was in fact due to non-compliance of the order of the Court regarding deposit of process fee; and (iii) that the ex parte order whereby the suit was restored was illegal. The Court considered the objections and ultimately dismissed the suit vide order, dated 9-6-1965. It may be observed here that the order, dated 9-6-1965 also records that Walayat Hussain Shah had paid Rs,1,000 to Manga, vendee- respondent, who had relinquished his right in favour of the appellant. However, the trial Judge failed to decide as to whether the partial compromise decree was to be passed in favour of Manga, respondent, or not. The plaintiff-appellant filed an appeal to the District Judge against the aforesaid order of dismissal which was accepted vide Court's order dated 7-6-1969; resulting in the restoration of the suit. The defendants-vendees then went up in second appeal to the High Court which was accepted and the order of restoration of the suit, made by the District Judge, was set aside and it was ordered that the application for restoration of the suit together with the objections filed by the vendees Manga and Gul Muhammad (now dead) should be taken up afresh in the light of six issues which were framed by the High Court. Thus, the High Court revived the application for the restoration for a fresh decision by the trial Court. The trial Court had yet to try the matter in pursuance of the direction of the High Court when Gul Muhammad, vendee, died on 14-11-1973. On the death of Gul Muhammad, vendee, Manga, respondent, moved an application that since Gul Muhammad had died and his legal representatives were not brought on record within the period of limitation, the application for restoration of the suit would be deemed to have abated under Order XXII, rules 3 and 4 of the Code of Civil Procedure. The trial Court upheld the objection and dismissed the application for the restoration of the suit vide order, dated 31-10-1981, holding that the same had abated. A revision petition was preferred to the High Court but the same was dismissed on 25- 5-1982. The order of the High Court dismissing the revision was challenged before the Supreme Court which remanded the case back to the High Court, inter alia, on the ground that the Court should consider as to whether the provisions of Order XXII, rules 3 and 4 regarding the abatement of the suit would apply to the application for restoration of the suit; and in case the answer of the aforesaid query is in affirmative, whether the suit would abate only to the extent of Gul Muhammad, deceased, or it would also abate against Manga, vendee, who had compromised and received his share of consideration to the tune of Rs,1,000. The High Court came to the conclusion that Manga, respondent, had made an application to the Sub-Judge on 14-3-1973 that Gul Muhammad, one of the vendees, had died on 18-8-1972, but the plaintiff-appellant did not apply for bringing his legal representatives on record till 14-6-1978, which meant that he applied for bringing his legal representatives on record six years after he had got the knowledge of his death. It was held that application was time-barred under Article 181 of the Limitation Act and, thus, the application for restoration of the suit would be deemed to have been abated. The High Court also opined that the application would arson be deemed to have been abated even against Manga, vendee, because the interests of vendees, i.e, Manga and Gul Muhammad, deceased, are not ascertainable from the contents of the sale-deed. It is against the aforesaid order of the High Court that the present appeal has been preferred.
6. We have heard the arguments advanced at the Bar. Ch. Muhammad Taj, the learned counsel for the appellant, confined his arguments only to the extent that the application for the restoration of the suit to the extent of Manga, who had compromised in the suit, cannot be said to have been abated. The learned counsel has argued that the High Court is not correct in holding that as the interests of Manga, respondent, and Gul Muhammad, deceased, were not separably ascertainable, the application for the restoration of the suit would abate in toto, i.e, even against Manga, respondent. He has argued that Manga compromised the matter after receiving Rs, 1,000 as share of consideration for the land and has categorically stated that remaining Rs,2,000 would be paid when Gul Muhammad, the other vendee, would appear in the Court. Obviously, Manga accepted his share of consideration to the tune of 1/3rd because the total consideration of the sale-deed was Rs,3,000. Thus, in view of the provisions contained in section 45 of the Transfer of Property Act, the proportionate share of Manga in the suit land would be to the extent of 1/3rd of the total acreage of the land sold.
7. The learned counsel for the respondent, Ch. Muhammad Sharif Tariq, has vehemently controverted the arguments advanced by the learned counsel for the appellants, and has contended that in right of pre-emption no equities are involved; and thus even if it is assumed that the share of Manga is ascertainable in view of the compromise, the suit would be hit by the principle of partial pre-emption. According to the learned counsel, the application for the restoration of the suit should be deemed to have been abated. 'It may be stated that the learned counsel for the parties could not add to their arguments which were advanced by them at the time of former hearing of the appeal. We have given due consideration to the above-listed arguments and we are of the opinion that so far as the question with regard to the share of Manga in the land sold is concerned, he was entitled to 1/3rd share as envisaged under section 45 of the Transfer of Property Act. Therefore, the contention that the share of Manga in the suit land is not ascertainable is not sustainable. It may be stated that the question as to whether the pre-emption suit would be hit by the principle of partial pre-emption or not is to be decided by the trial Court only when the application for the restoration of suit is decided; and the suit is restored. We have already stated that the trial Court has first to decide the question of the restoration of the suit and it is then that the matter regarding partial pre-emption would fall for determination in case the suit is restored. Therefore, the appeal is accepted in terms that the application for restoration of the suit so far as Manga, respondent, is concerned, cannot be said to have been abated. Consequently, we amend the judgment and decree of the High Court to the extent indicated above. The trial Court shall proceed to decide the application for restoration of the suit so far as the same related to Manga, respondent, in the light of the judgment of the High Court whereby the case was remanded to the trial Court. The appeal stands disposed of in the manner indicated above.