' The Regular Second Appeal has arisen out of a pre-emption suit, which was filed by the respondents, challenging the sale of the suit property in favour of the appellant dated 16-10-1972, affected vide Mutation No,275. The plaint was received by the Reader of the Senior Civil Judge, Chiniot on 15-10-1973, as the learned Judge was on leave and for the first time the plaint was presented before the Judge on 17-10-1973. The claim for pre-emption was based upon being owner of the estate, as also co-sharer in the relevant khatas.
2. This suit was contested by the appellant/vendee and after framing of the issues the parties were put to trial. Two important issues involved in the case were regarding limitation and superior right of preemption.
3. The learned Civil Judge vide judgment and decree dated 23-2-1980, disallowed the suit, as being barred by time, whereas found that the respondents have superior right of pre-emption. An appeal was filed by the respondents on the question of limitation, which was accepted by the lower appellate Court on 10-12-1984 and as no cross appeal/cross objection was filed by the appellant on issues decided against him and also for the reason that in the judgment it was observed that no other issue was assailed, the appellate Court passed a decree in favour of the respondents and against the appellant.
4. Against the above, R.S.A. No,290 of 1984, was preferred by the appellant before this Court, which was accepted vide judgment dated 22-2-1989, on the question of limitation, the case was remanded to the trial Court to decide the issue of limitation afresh on the basis of evidence to be adduced by the parties and by proper scrutiny of the record.
5. Anyhow, after remand of the case the appellant moved an application seeking amendment in the written statement, to add a plea that on account of Mutation No,364, dated 6-5-1981, with regard to succession, the appellant had improved the status and consequently the pre-emption suit was liable to be dismissed on that account in terms of section 21-A of the Pre-emption Act, 1913.
This application was contested by the respondents, was rejected, but in revision it was allowed, consequently two issues i,e, Issues Nos.5-A and 5-B were framed by the trial Court on 19-5-1991, which are as follows:- ' Issue No,5-A: Whether the defendant/ vendee has improved his status during the pendency of suit, if so, its effect? OPD.
' Issue No,5-B: Whether the suit cannot proceed in view of enforcement of latest enactment 1991?
OPD.
6. The Trial Court holding that as the decree in the case had been passed prior to 31-7-1986, decided Issue No,5-B against the appellant, whereas on Issue No,5-A the findings are that as the decree has been passed in this case on 23-2-1980, therefore, the relevant date for determination of the improved status of the pre-emptor is the date, on which the decree was passed, resultantly any improvement made by the appellant in the year 1981, ,during the pendency of appeal would be of no avail to him. The Court in appeal also affirmed the same view.
7. Learned counsel for the appellant has argued that the suit filed by the respondents was dismissed on 23-2-1980 and as it was not allowed, therefore, the appellant had improved the status though during the pendency of the appeal, but when the case has been remanded in R.S.A.
No,290 of 1984, the suit was restored to its original number and would be deemed to be pending for all intends and purposes, thus, the status improved in 1981 by the pre-emptor would defeat the right of the respondents. In this regard the learned counsel for the appellant has relied upon 1992 SCMR 445 and 1993 SCMR 696 to state that the decree in preemption suits amounts to the decree allowing the suit and not disallowing the claim.
8. Before examining the above argument it may be pertinent to state here that the issue pertaining to superior right of preemption was found against the appellant. No appeal or cross-objections were filed, even as per judgment of the Court in appeal dated 10-12-1984, the findings on no other issue was assailed, no application was moved in the appellate Court seeking to defeat the preemption right of the respondents on account of improvement in the status as alleged. Not only that, when second appeal was filed in this Court the above point was not raised, neither during the pendency of the second appeal it was ever brought to the notice of the Court. It is only after the case has been remanded, that for the first time the appellant applied to seek the amendment.
' I have also heard the learned counsel for the parties. In my view the above referred two judgments have no relevance to the case in hand. The point examined in 1992 SCMR 445 was with regard to the interpretation of section 35 of the N.-W.F.P. Pre-emption Act, 1987 and it was held that the judgment and 'decree mentioned therein means a decree wherein the suit of the pre-emptor has been decreed by the Court rendering it. Whereas in 1993 SCMR 696 the question was similar and identical provisions of Punjab Pre-emption Act (IX of 1991) were being interpreted. These two judgments, thus, have no application to the proposition in hand.
9. - According to section 2(2) of the. Code of Civil Procedure decree has been defined, which reads as under:-- "'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint (the determination of any question within section 144 and an order under rules 60, 98, 101 or 103 of Order XXI) but shall not include--
(a) any adjudication from which an appeal lies is an appeal from an order, or
(b) any order of dismissal for default."
From the above definition as also from the gist of various judgments a decree means:-
(i) adjudication given in a suit;
(ii) determining rights of the parties;
(iii) such rights should be with regard to all or any of the matters in controversy;
(iv) be conclusive, and
(v) formal expression.
Thus, the dismissal of a suit for all intends and purposes would be a decree and as admitted by the learned counsel for the appellant any improvement in status on account of succession achieved by the vendee after the suit has been decreed is not relevant, cannot defeat the right of the pre- emptor. In this regard, the following portion of the case reported as PLD 1994 SC 848 can also be referred with advantage:--- "In view of the above discussion, we are of the view that after insertion of section 21-A in the Act, a vendee is not entitled to defeat the claim of the pre-emptor by pleading improvement in his status through voluntary acquisition of property right after the institution of pre-emption suit against him.
However, if the improvement in the status of vendee takes place by acquisition of property right through succession or inheritance even after institution of the pre-emption suit but before a decree is passed in the suit then such improvement in the status of vendee can be pleaded as a defence to the claim of the pre-emptor. In the present case, the vendee did not improve his status at the time of passing of the decree in the preemption suit in favour of the respondent. The improvement in the status of vendees took place during the pendency of the second appeal in the High Court as a result of death of Taj Din. In these circumstances, the vendees were not entitled to any benefit arising as a result of improvement in their status due to death of Taj Din during pendency of the second appeal before the High Court."
10. There is another important aspect of the case, the object behind improvement of status by the vendee to defeat the right of preemption is based upon the principle that before such right is recognised by the Court through final determination, the vendee can improve the status and defeat the pre-emption suit. In the instant case, as the issue regarding superior right of pre- emption was found in favour of the respondents, it was not challenged in cross-appeal or cross-, objections, and the) respondents were only ousted on the ground of limitation, therefore, any improvement made in the year 1981, after the conclusive decision on the superior right of pre- emption of the respondents, had no effect on such right. In view of above, the findings of the Court below on Issue No,5-A are upheld.
11. As regards the question of limitation, the argument of the appellant side is that the `Courts below have not followed the remand order. According to the learned counsel it was imperative on the trial Court to have scrutinised the record and to have dismissed the suit on account of its being out of limitation. Even otherwise under the provisions of section 3 of the Limitation Act, 1908, it is the duty of the Court to examine the question of limitation.
12. In the present case as per the remand order the parties were allowed to produce evidence on the issue of limitation though the Court was also directed to scrutinise the record. The onus of issue of limitation was on the appellant and after the remand, no evidence was led by the appellant on this issue, which was dependent upon certain facts; consequently, the appellant had failed to prove the issue. In rebuttal the respondents had given full facts how the suit was filed when the Judge was on leave, it was received by the Reader of the Court, who endorsed 17-10-1973, to be presented before the learned Judge. According to the lower appellate Court nothing was brought on record by the appellant to show that the learned Judge was not on leave on 16-10-1973 and, thus, could have taken up the case or); that date and has rightly relied upon the judgment reported as PLD 1992 SC 47, to argue that where the Court is on leave, the period is extended till the time it resume function. Moreover, the judgment reported as PLD 1989 Lahore 43 is directly on the point and even the situation where the plaint is pvt in the box outside the Court for the purpose of institution of the suit has been taken into account and admitted to be valid presentation of the suit.
PLD 1971 AJK 16 also supports the case of the respondents.
13. The question that under the remand order it was the duty of the trial Court to have scrutinised the record, suffice to say that both the Courts below have taken into account the relevant endorsement made by the Reader, which was the only record relevant for consideration, thus, there is no disregard of the order passed by this Court.
' In view of above, I do not find any illegality or error of jurisdiction in the impugned judgments and decrees of the Courts below on the question of limitation as well, consequently, this appeal has no merits and is hereby dismissed, leaving the parties to bear their own costs.