' SH. RIAZ AHMAD, J.---This appeal through leave of this Court is directed against the judgment and order dated 29-11-1997 whereby civil revision filed by the respondent was accepted and the suit for pre-emption was decreed in his favour.
2. The facts in brief giving rise to the institution of this appeal are that the respondents Sharaz Attaullah Khan and Nusratullah Khan instituted a suit for possession through pre-emption in respect of land measuring 91 Kanals, 4 Marlas situate in village Hussainwala, Tehsil and District Mianwali against the petitioners/vendees who had purchased the same from Shah Jehan Khan and others. Both the pre-emptors are sons of the vendors, namely, Shah Jehan Khan and Sooba Ahmad Sardar Khan respectively, and thus, on the basis of their superior right to pre-empt, the suit aforesaid was instituted. The suit was contested and vide judgment dated 17-10-1982 the learned Civil Judge decreed the same on payment of Rs,1,00,000 as pre-emption money and a direction was given to the pre-emptors/plaintiffs to deposit the said amount on or before 15-11-1982.
3. Dissatisfied with the price of the land fixed by the learned Civil Judge, the respondents/plaintiffs took an appeal before an Additional District Judge, Mianwali and the same was allowed and vide judgment dated 9-5-1983 the judgment and decree passed by the learned Civil Judge was modified and the price of the land was reduced from Rs,1,00,000 to Rs,89,500. The plaintiffs/pre- emptors were also directed to deposit the said amount after deduction of Zar-i-Panjum on or before 2-7-1983. On 29-6-1983 the plaintiffs/pre-emptors moved for review of the judgment and decree passed by the learned Additional District Judge wherein it was urged that one of the plaintiffs wishes to withdraw his suit, and therefore, he be allowed to do so and the respondent/co- plaintiff be granted a decree for the entire suit land. In the review application it was further prayed that the respondent/plaintiff be also allowed to deposit the entire pre-emption money and a fresh date may be fixed for its deposit or the date for deposit already fixed be extended. It was also prayed in the review application that the operation of the judgment and decree for the deposit of pre-emption money be suspended till decision of the review application. The learned Additional District Judge vide his order dated 30-6-1983 held that the respondent was entitled to half of the land, and therefore, he should deposit half of the pre-emption money within the prescribed time.
Regarding the deposit of the remaining amount the learned Additional District Judge observed in his order that the same can be done after hearing the parties, and therefore, the judgment and decree sought to be reviewed was not suspended and the learned Additional District Judge further observed that the question of deposit of the remaining amount shall be decided after the final decision.
4. In pursuance of the said order, the respondent deposited an amount of Rs,24,650 on 2-7-1983 in addition to the Zar-i-Panjum which made the total equivalent to Rs,44,750 i.e, the price of the share of the respondent/plaintiff. The review application could not be decided till 25-2-1984 on which date the learned Additional District Judge dismissed the same as well as the suit in toto for want of deposit of total decretal amount i.e, Rs,89,500 before the date fixed in the original judgment and decree dated 9-5-1983. The learned Additional District Judge, while dismissing the review application as well as the suit observed that the suit seeking possession through pre-emption was joint and the same could not be split into two separate or rival claims after dismissal of the appeal.
According to the learned Additional District Judge, one of the plaintiffs cannot be permitted to withdraw his claim nor can he surrender his claim in favour of the other plaintiff and since the total pre-emption money was not deposited as directed by the Court, the entire suit merited dismissal.
The learned Additional District Judge also observed that the concession of partial preemption was not available to one of the plaintiffs as he had not sought decree for the total land in his favour alone either in the plaint or in the memo. Of appeal, and therefore, the decree cannot be granted to him. It was also observed that no circumstances existed on record to allow the concession for extension of time for deposit of pre-emption money because the Court has already become functus officio.
5. Orders dated 25-2-1984 and the judgment and decree dated 9-5-1983 were assailed by way of invoking revisional jurisdiction of the Lahore High Court and vide judgment impugned, the said revision petition was allowed and against the said order leave to appeal was granted by this Court.
6. We have heard the learned counsel for the appellants and the respondents at length. On behalf of the appellants it was strenuously argued that in fact the respondents wanted to get extension of time for the deposit of preemption money fixed by the learned Additional Distri& Judge, who after deciding the appeal had become functus officio, and therefore, the pre-emption money not having been deposited as directed by the trial Court, the entire suit merited dismissal and that the learned Additional District Judge had passed a lawful order, which could not be interfered in exercise of revisional jurisdiction by the High Court. In support of his contention the learned counsel for the appellants placed reliance on the following judgments:--
(1) Muhammad Gul v. Nematullah and another (PLD 1968 Azad J&K 15),
(2) Mardan Shah v. Sattara and others (PLD 1954 Lah. 87),
(3) Shah Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983),
(4) Khan Shah Muhammad Khan v. Allah Diways and others (PLD 1961 Lah. 743),
(5) Mst. Jannat v. Sharu and 3 others (PLD 1983 Lah. 302), and
(6) Bhai Khan v. Allah Bakhsh and another (1986 SCMR 849).
' As far as the contention raised by the learned counsel for the appellants and the judgments cited by him are concerned, we have carefully perused the same and a number of cases support the respondents rather than the appellants. In Bhai Khan v. Allah Bukhsh and another (1986 SCMR 849) while deciding the question as to whether the Appellate Court while deciding the appeal should fix a further period for deposit of pre-emption, it was held that although the Court is not bound, yet normally a reasonable time should be granted to the pre-emptor for the deposit of the pre- emption money.
7. It was also contended that till date the respondent has not deposited the pre-emption money, and therefore, on this short ground the dismissal of the suit by the learned Additional District Judge cannot be interfered with. It was also urged before us that a joint decree was passed in favour of both the respondents/pre-emptors and they had to sail together and if one of the plaintiffs had withdrawn from the suit, the whole decree stands frustrated, and therefore the suit in its entirety has rightly been dismissed.
8. On the other hand on behalf of the respondents it was vehemently contended that the plaintiffs/respondents had filed suit on the basis of their own independent right, which admittedly was superior individually as well qua the respondents being sons of the two vendors and therefore if one of the plaintiffs had opted to withdraw, the other plaintiff was entitled to decree for whole of the land in suit, and therefore, the suit could not be dismissed by the learned Additional District Judge in toto. In support of this contention, the learned counsel placed reliance on the following reported cases:--
(1) Anrub Misir v. Ram Harakh Misir (AIR 1929 All. 953), (2) Ramji Lal and others v. Pitam Chand (AIR
(35) 1948 EP18),
(3) Khawas Khan v. Rasul Khan and Lashkar Khan 29 PR 1894), (4) Mehr Allah Ditta v. Muhammad Ali (PLD 1972 SC 59),
(5) Mst. Said Begum and others v. Nur Ahmad and others (PLD 1978 SC 133), and
(6) Jalla and others v. Naranga and others (PLD 1949 Lahore 302).
It was also urged that while hearing the review petition, the learned Additional District Judge had the jurisdiction to extend the time for deposit of the balance decretal amount and refusal to allow to deposit the pre-emption money, amounted to failure to exercise jurisdiction vesting in the Additional District Judge. It was contended that before the expiry of the time fixed by the learned Additional District Judge for the deposit of the pre-emption money, an application had been moved for the modification of the decree seeking permission to deposit the whole decretal amount. This application was kept pending by the Court and it was observed that the respondent should deposit the pre-emption money to the extent of his share within the time fixed by the Court and with regard to the right to deposit the balance amount, the matter was postponed to be decided after hearing the parties. While refusing to suspend the operation of the decree, it was also observed that a proper order shall be passed at the time of decision of review application. It was thus, contended that in view of this development, the respondent did deposit the pre-emption money within the time fixed by the Appellate Court to the extent of his own share and obviously the respondent could not have deposited the balance without the requisite modification of the decree and an order passed by the learned Additional District Judge in this behalf. It was, thus, urged that failure to deposit the total pre-emption cannot be attributed to the respondent, but this lapse took place on account of the order of the Court, and therefore, the respondent cannot be penalised by way of dismissal of the suit in toto on account of non-deposit of the pre-emption money. The learned counsel for the respondents also argued that although both the respondents had filed the preemption suit jointly, but each one had right to obtain decree jointly and severally for possession of the suit land on payment of the sale price fixed by the Appellate Court. Withdrawal of the suit by one of the co-plaintiffs, who had no superior right as compared to the other plaintiff, would not have resulted into dismissal of the suit in toto because the right of pre-emption is a right of substitution and it is not a sale, therefore, if one of the pre-emptors opted to withdraw from the suit and the other wanted to pre-empt the sale as a whole on the basis of his own right, which was held to be superior, the respondent was entitled to a decree in respect of the entire suit land and thus dismissal of the entire suit was illegal. It was urged that in obedience to the order of the Appellate Court while hearing the review petition, the respondent had deposited the pre-emption money qua his own share, and thus, without modification of the decree the respondent could not have deposited the balance amount. Much stress was laid by the learned counsel on the principle that no one would be prejudiced by an act of the Court.
9. On behalf of the respondent it was also contended that right to file review application was a statutory right and the learned Additional District Judge did have the jurisdiction to extend the time for deposit of the pre-emption money and it was fallacious to observe that the Court had become functus officio.
10. We have minutely examined all the contentions raised by both the sides and have also gone through the judgment impugned and the case-law relied upon by both the sides. Admittedly, before the date fixed for the deposit of the preemption money by the learned Additional District Judge i.e, 2-7-1983 the respondent had on 27-6-1983 filed a review application before the learned Additional District Judge praying for the modification of the decree as well as fixation of period for deposit of the pre-emption money. On account of withdrawal of one of the pre-emptors from the suit, in the review application it was also prayed that the respondent was entitled to the grant of decree of the whole of the suit land. The respondent also deposited Rs,44,750 before the date specified. It, thus, stands established on record that the respondent had not committed any default. Obviously, the responsibility for not depositing the balance cannot be laid upon the respondent because it had not been so ordered by the Court. The precedent cases cited by the learned counsel for the respondent clearly lay down that right of pre-emption is not a right of purchase of property or a fresh sale. Each pre-emptor has an independent right to pre-empt a sale and even one of the pre-emptors withdraws or is found to be divested of superior right with reference to the sale in question, his name can be struck off and the remaining pre-emptor if found entitled on the basis of his own right, can get a decree for the entire land sold. The withdrawal or death of one .Of the pre-emptors would only have the effect of eliminating him for the case, which would not affect the right of the remaining pre-emptors. It, is thus, clear that the respondent individually had a right to get decree for possession of the whole of the land subject to deposit of the whole decretal amount because, admittedly, the respondent and the co-plaintiff, who withdrew, had superior right of pre-emption, being sons of the vendors. Furthermore, in this case the respondent was willing to deposit the whole of the decretal amount and had prayed for permission to do so, but the same was postponed by the Court.
11. As far as review application is concerned, we do not find any flaw in filing of such an application because the decree had been passed by the Additional District Judge and the case had taken a new complexion because of withdrawal of one of the plaintiffs/decree-holders. The respondent requested for permission to deposit the balance price, therefore, in our view it was a fit case wherein review jurisdiction ought to have been exercised by the Appellate Court which had earlier passed the decree. In this view of the matter, it was also necessary to fix fresh date for the deposit of the sale price. The view taken by the High Court in this regard is unexceptionable.
12. The contention of the learned counsel for the appellant that the discretion having been exercised by the first Appellate Court should not have been interfered is also fallacious. In our view, the discretion exercised by the Additional District Judge was arbitrary and capricious. Having directed deposit of half of the price, the learned Additional District Judge had himself postponed the question of deposit of pre-emption money till the decision of the review application and in the end dismissing the review application as well as the suit in toto, as discussed above, was not in consonance with law, and thus, in our view the High Court rightly interfered in this matter in exercise of its revisional jurisdiction.
13. The upshot of the above discussion is that the judgment impugned is without any flaw.
Consequently, this appeal must fail and is hereby dismissed leaving the parties to bear their own costs.