JUDGMENT MUHAMMAD NASEEM, J- This revision petition has arisen in the following circumstances: - Sajawal Khan respondent purchased the suit proper "in prising an area of 46 Kanals, 19 Marlas of land fully described in the plaint through a registered sale deed in consideration for an amount of Rs. 85109/-. Wali Muhammad since deceased at present represented by his heirs as his brothers Sultan Muhammad and Muhammad Musa instituted their suit to pre-empt the said sale. They claimed their superior pre-emptive right and asserted that Sajawal Khan respondent-vendee was a stranger thereof. The quantum of sale price mentioned in the sale deed was also questioned. The suit was resisted by the respondent- vendee ho irr his written statement asserted that the same was barred by time which was that of partial pre-emption, that the pre-emption had waived their right of pre-emption and lied he being a tenant on the suit land at the relevant time had the superior right of pre-emption.
2. According to the pleadings of the parlies following issues were framed for determination by the Trial Court:- (1). Whether this suit is barred for the reasons stated in para No. 1 of the written statements.? OPD
(2) . Whether this Court has no jurisdiction to try the suit?()PD
(3) . Wherein the plaintiffs have waived their right of pre-emption? OPD
(4) Whether the plaintiffs have superior right of pre-emption as against the defendant qua the suit land? OPD (5)Whether Rs. 85109/- were fixed in good faith and actually paid as sale price of the suit land?
OPD
(6) If issue. No. 5 is not proved then what was the market value of the suit land at the time of its sale? OPD
(7) Relief.
3. The parties produced their evidence. Only issue No. 4 was argued while the remaining objections raised by the defendant-vendee were not pressed.
The learned Trial Court held that Sajawal Khan was a tenant at the relevant time of the sale which status was not enjoyed by the plaintiffs. Consequently the suit was dismissed on 14.6.1982. An appeal was preferred before the District Court which was accepted on 23.12.1982 by the Additional District Judge who granted the pre-emptors/petitioners a decree for possession through pre- emption.
4. R.S.A. No. 21/83 was filed by the respondent-vendee before this Court which was accepted on 19.10.1991. It was held that the value of the suit for the purpose of jurisdiction was Rs. 61951.20 which exceeded the pecuniary jurisdiction of the District Court which was up to Rs. 50,000/- as on the date of preference of the appeal and disposal of the same. The pecuniary jurisdiction of the District Court had gone up to Rs. 2 lac on 19.10.91. However, this Court accepted the appeal, set aside the judgment and decree dated 23.12.1982 passed by the Additional District Judge. It was directed that the lower Appellate Court shall pass an order for the return of memorandum of appeal to the respondent (Pre-emptor) for presentation to proper Court.
5. The petitioners filed Civil Petition for Leave to Appeal No. 1071-L/91 before the Hon'ble Supreme Court of Pakistan. On 2.12.1992 the Leave to Appeal was refused as no merit was found therein.
Para No. 6 from the aforesaid order dated 2.12.1992 is reproduced as under: "We find that there is no merit in this petition but the learned counsel states that the order of returning the appeal for presenting now to the same Court would appear to be somewhat contradictory, There is no contradiction because technically that has to be done though return of the first appeal would be by the Officer who will receive it again if presented to him. That is the option of the petitioners and could not be a direction from the Court".
6. After the remand of the matter by this Court it was taken up by the District Judge, Sahiwal. The parties did not appear. However, on 20.i.l992 Muhammad Musa pre-emptor alongwith Mr. Ahmad Saeed Khan Baloch, Advocate for the pre-emptors appeared. In the inter locutory order the District Judge passed the order for the return of the memorandum of appeal and advised the pre- emptors to present the same before the Court of competent jurisdiction. On the same date (20.1.1992) Mr. Ahmad Saeed Khan Baloch, Advocate made the endorsement about the receipt of the memo, of appeal and signed the same,
7. On 25.1.1992 the pre-emptors filed an application alongwith an affidavit for keeping pending the return of the memorandum of appeal due t6 the fact that they had moved the Honourable Supreme Court of Pakistan by filing the Civil Petition for Leave to Appeal. An affidavit was also submitted alongwith this application. On 25.1.1992 the District Judge, Sahiwal passed the following order in vernacular:- Perhaps due to the inadvertence instead of 'appellants' the 'respondents' is narrated in the above order.
8. The matter remained pending on the file of the District Judge. As expressed above the Leave to Appeal was refused by the Honourable Supreme - Court of Pakistan to the petitioners/pre-emptors on 2.12.1992. On 12.1.1993 the pre-emptors filed an application before the District Judge to decide the appeal on merits as the same was pending before the Court. They contended that the Honourable Supreme Court of Pakistan had allowed them to present the memorandum of appeal again on the basis of order dated 2.12.1992. A petition under Section 14 of the Limitation Act, 1908 was also filed wherein it has been narrated that the petitioners prosecuted their matter in good faith. Wali Muhammad petitioner did in the meanwhile and the application for impleading his legal representatives was also filed on 6.4.1993. No reply to the application was obtained by the District Judge regarding the hearing of the appeal on merits. The appellate record was requisitioned and the adverse party/vendee-respondent was summoned. After hearing the parties the District Judge expressed the view that the memorandum of appeal was returned to the appellants on 20.1.1992 who had not presented the same before the Court of competent jurisdiction till that date (6.12.1993) in accordance with the directions of the Lahore High Court Multan Bench, Multan passed on 19.10.1991. It was held that the memorandum of appeal could not be entertained and disposed of.
Consequently, the application submitted in the matter was dismissed. Feeling aggrieved the petitioners/pre-emptors have filed this revision petition.
9. I have heard the leaned counsel for the parties and gone through the record before me. Leamed counsel for the petitioners/pre-emptors argued that the fact of the matter is that the memorandum of appeal was n the petitioners on 20.1.1992 and that on 25.1.1992 the application was filed to keep the memorandum of appeal in the Court till the decision of the matter pending before the Honourable Supreme Court of Pakistan. He added that even otherwise the memorandum of appeal was handed over to the District fudge on 25.1.1992 which was proper compliance of the order passed by. The High Court on 19.10.1991. He added that all matters brought before the Court should be finally decided and technicalities should not stand in the way of doing justice. On the contrary learned counsel for the respondent argued that after the order dated 19.10.1991 passed by the High Court either the appeal could be filed or the plaint could be received and presented before the Court of competent jurisdiction and that by filing the Petition for Leave to Appeal the matter could not be placed before the District Judge on 25.1.1992. He added that the file was taken away by Mr. Ahmad Saeed Khan Baloch, Advocate of 4th prc-emptors/appellants- on 20.1.1992 who made his endorsement in the matter and signed the same. Referring to the application dated 25.1.1992 supported by an affidavit learned counsel for the respondent laid the emphasis that the memorandum of appeal was' not presented on 25.1.1992 even according to the stand of the petitioners who cannot be allowed to take a contrary stand by making approbation and reprobation. My view is that it is an exceptional matter in the sense that the territorial jurisdiction of the Court was not involved. Further there was no conflict regarding the jurisdiction of the Civil Court on the one side and that of the Settlement Department, etc. On the other. Side, it was also not a matter of pecuniary jurisdiction of different grades of the Civil Courts or the matter regarding the difference of pecuniary jurisdiction of the District Court on the one side and file High Court on the other side as on 19.t0.1991. The most important aspect of the matter which has stolen the eminence for the purpose of disposal of the dispute in hand is that no doubt on 23.12.1982 the pecuniary jurisdiction of the District Court was up to Rs. 50,000/-. . However, the same stood enhanced during the pendency of the R.S.A, before the High Court up to Rs. 2 lac. On 19.10.1991 the pecuniary jurisdiction of the District Court was Rs. 2 lac. In the instant matter the memorandum of appeal was to be returned to the appellants by the District Judge, Sahiwal and they had to present the same before the District Judge, Sahiwal for the purpose of the compliance of the procedural formality. It was incumbent upon the District Judge, Sahiwal to write the certificate under Order VII Rule 10 C.P.C. On the memorandum of appeal that he had no pecuniary jurisdiction. The memorandum of appeal does not contain such a certificate. As an abundant care and caution the application was submitted on 25.1.1992 alongwith the affidavit by the pre-emptors and ^obviously on the advice of their learned advocate. However, the memorandum of appeal was presented before the Court on 25.1.1992 which was entertained by the District Judge, Sahiwal and he passed the order to retain the same in his office. Thereafter, the position which emerges is that it cannot be held that the memorandum of appeal was not on the file of the District Judge who himself had entertained the same. There is no provision in the Code of Civil Procedure to authorise and make competent the District Judge to retain the file of an appeal (Memorandum of appeal) under trust.
My view is that the technicalities should not stand in the way of administration of justice, In the instant matter, a pursual of para ft of order dated 2.12.1992 passed by the Honourable Supreme Court of Pakistan has made out that technically the order of returning the appeal for presentation has to be done though return of first appeal would be by the Officer who will receive it again if presented to him. In the instant matter much before 2.12.1902 it was on 25.1.1992 that the appeal was presented to the District Judge, Sahiwal who retained the same in his office and obviously due to the pendency of the matter before the Honourable Supreme Court of Pakistan, In the exceptional circumstances of this ca&c the Officer who had to return the memorandum of appeal was the same Officer who had to entertain the same afterwards on presentation before him. The needful was done on 25.1.1992 and 1 hold that the appeal was pending before the District Judge, Sahiwal with effect from 25.1.1992. There is no contravention and due to the fact that District Judge, Sahiwal had collected the memorandum of appeal, I hold that the same? Was presented before him who entertained the same and kept the same pending. After the decision of the Supreme Court of Pakistan on 2.12.1992 the application was moved on 13.1.1993 for the disposal of the appeal on merits. This application has the merit which is to be accepted keeping in view the rights of the parties involved in the original appeal.
10. For what has been said above, I accept this revision petition, set aside the order dated 6.12.1993 under revision and hold that the appeal is pending before the District Judge, Sahiwal which has to be disposed of in accordance with law on merits, In the circumstances the parties are left to bear their on. Costs.
11. The original record shall be sent to the District Judge, Sahiwal which shall be placed before him bn 20.11.1995 on which date the parties and their learned counsel shall appear therefore him and he shall proceed further in accordance with law in the light of the aforesaid observations.