1. ' Civil Revision by the plaintiff arises out of a pre-emption suit. It was dismissed by the trial Court, on 30-7-1988. Appeal from the decision failed on 2-2-1989.
2. ' Relevant facts are: 15-1/2 Kanals of land at Chak No,154 Shumali, in Tehsil and District Sargodha, belonged to Muhammad Ashiq son of Ali Nawaz. By a deed registered on 19-6-1976, he sold it to Ghulam Muhammad son of Muhammad All for a consideration of Rs.13,000. Mst. Nathi, as mother of the vendor claimed pre-emption, in respect of the above sale and sued for it, on 16-7-1976.
3. Defendants submitted their written statement and contested the pre-emption suit. On 18-12-1976, the trial Court settled material issues which were as many as eight in number including that of relief. Plaintiff gave her evidence. Upon its conclusion, suit was adjourned for defendant's evidence.
4. Before his evidence could be taken, his son Shabbir Hussain proposed that if the plaintiff was agreeable to pay Rs.18,000 for the land-in-dispute to the defendant, pre-emption suit may be decreed against him. Muhammad Shabbir for the plaintiff accepted the offer. Consequently, the pre-emption suit was decreed by the trial Court on 2-6-1982, subject to payment of Rs.18,000 as the sale-price for the land-in-dispute. Plaintiff deposited the sale-price in time, fixed in the decree of the trial Court.
5. ' On 23-8-1982, plaintiff submitted an application under section 12(2) of Civil P.C. for setting aside of the decree, on the ground that she had not authorised Muhammad Shabbir for consenting to the payment of sale-price and he was not her authorized agent to bind her by his act. Successors of Ghulam Muhammad, who died mainly resisted the application. Upon conclusion of plaintiff's evidence in respect of the application under section 12(2) of Civil Procedure Code, on 29-6-1984, learned cousnel for successors of deceased Ghulam Muhammad agreed to the setting aside of the consent decree and decision of the suit on merits. Thereupon, the original decree was set aside and the suit was tried on merits between the parties. At retrial, pre emption suit was mainly dismissed in the trial Court, on score of bar for passing of a fresh decree on or after 31-7-1986, set in case of Sardar All and others v. Muhammad All and others PLD 1988 SC 287. Though, the trial Court gave findings on merits but the learned appellate Judge confined himself merely to the application of above bar and maintained the judgment of the trial Court on its basis alone.
6. ' From the above statement of facts, it was to be seen, whether setting aside of the decree passed on 2-6-1982, in proceedings taken under section 12(2), C.P.C. by the plaintiff was any bar for a fresh decree in the pre-emption suit, on account of the judgment of the Supreme Court, in the case of Sardar Ali. In case of Sajjad Hussain and 4 others v. Meharban and 5 others 1989 CLC 1727, I took the view that upon setting aside of the ex parte decree passed in the pre-emption suit before 31-7- 1986, a fresh decree in the pre-emption suit thereafter, could not be passed because of a bar set in the case of Sardar Ali. My view was not accepted by the Supreme Court. View taken was that an ex parte decree was as good as any other decree of a competent Court and its later setting aside was not a bar for the Court to pass a fresh decree in the pre emption suit, on or after 31-7-1986.
7. Though, I have not been able to locate the decision of the Supreme Court given in appeal from my decision but a judgment of the Supreme Court on the same lines was available in Ghulam Rasool and 2 others v. Faiz Bakhsh 1992 SCM R 1328 and Bahadur Khan v. Muhammad Yousaf and another 1992 SCM R 2117. Similarly, my decision given on 21-6-1988, in R.S.As. Nos.629 and 630 of 1975 at Rawalpindi Bench of the Lahore High Court was upset in appeal by Supreme Court in Muhammad Ismail through his Legal Heirs and others v. Ghulam Haider and 3 others 1991 SCM R 1443 with the observations that:-- "So far as the constraints of decision of Sardar Ali's case are concerned, two features have to be noted. Firstly, the rights held protected under that decision were those in which the right to pre empt the sale was recognised. It was not dependent on the nature and extent of the relief granted. If the rights stood recognised, then in the matter of relief, increase and decrease in the area or share could take place without violating the law laid down by this Court in Sardar Ali's case.
8. ' Secondly, what was recognised in Sardar Ali's case was a right to pursue his remedies after a decree has been obtained in recognition of his right. There may take place remands and reversals of the decree but the pursuit of the pre-emptor, once a decree has been passed before the relevant date, can continue undeterred and uninterrupted. On this view of the matter, the decision in Sardar Ali's case was no bar to the grant of relief which the High Court thought the pre-emptors eminently deserved."
9. The mode and manner chosen for setting aside of the decree was immaterial. Important fact was the existence of a decree in the pre-emption suit before 31-7-1986. Its later reversal was inconsequential. However, I may hasten to put in a word of caution that a judgment and decree grounded in and wholly tainted with fraud may not be sanctified by the Court for building up future rights to the property. Since this point is not before me, I may not risk a considered opinion on it and shall leave it for future examination upon an appropriate occasion. In the case under consideration, though the application was addressed to the trial Court under section 12(2), Civil Procedure Code yet in essence, the Court was petitioned by the plaintiff for relieving her of the unauthorized act of Muhammad Shabbir who held no authority from her. There is no clear finding on fraud by the trial Court. The decision proceeded on a concessional statement from the defendant for agreeing to the setting aside of the decree in the pre-emption suit. There was neither approbation nor reprobation in the act of a fresh decree. The lower Courts wrongly found a bar for them for passing of a fresh decree in the pre-emption suit. In view of the aforesaid, Civil Revision is allowed, impugned judgment and decree of learned Additional District Judge, Sargodha, dated 2- 2-1989 are set aside and the case is remanded to learned District Judge, Sargodha for deciding of the appeal presented by Mst. Nathi on all issues afresh in accordance with law. There shall be no order as to costs in this Court.
10. ' Parties shall appear before the learned District Judge on 6-3-1993.