A suit for pre-emption was filed by Zaka Ullah respondent No. 2 against the present petitioners/defendants to pre-empt the sale of agricultural land measuring 52 Kanals and 4 Merles sold by Fazal Ali Khan and Abdul Aziz Khan for an ostensible price of Rs.12,350 whereas the actual price was alleged to be Rs.5,000. 'The respondent/plaintiff claimed his superior right of pre-- emption qua the vendee/defendants on the ground that he was closely related to the vendors. The relationship of the pre-emptor could not be established during the trial before the learned Senior Civil Judge, Gujrat who dismissed the suit on 23-9-1965. An appeal was filed against the dismissal of the suit by the aforesaid pre--1965. Which was accepted by the learned Additional District Judge, Gujrat on 19-2to966 and the finding on the issue of relationship was reversed and the case was remanded with the direction that the actual sale-price be ascertained. The second appeal was filed in the High Court which was decided on 14-2-1984, whereby, judgment of the learned Additional District Judge, Gujrat dated 19-2-- 1966 was set aside and the suit for pre-emption was dismissed thereby upholding the judgment of the trial Court dated 23-9-1965. Leave to appeal was granted by the Honourable Supreme Court vide order dated 20-2-1988 in Civil Petition No. 431 of 1984. The Civil Appeal No. 34 of 1988 arising out of the aforesaid petition came up for hearing before the Honourable Supreme Court which was accepted and the judgment of the High Court was set aside and that of the first appellate Court (Additional District Judge) was restored. The following observation was made in respect of the amendment of the written statement in paragraph No. 16 of the aforesaid judgment:- "In view of the foregoing discussion, this appeal is accepted, the judgment of the High court is set aside and that of the first appellate court restored with all the consequences that ensued thereafter. As regards the prayer for the amendment of written statement, it is futile. The notification on which reliance is placed for amending the written statement itself mentions that the price was not to exceed Rs.10,000 in order to obtain the benefit of the exemption notification. In the case in hand, it was the respondents case who are seeking amendment that Rs.12,350 was the price paid for the equity of redemption and it had been finally so held and the amount had also been deposited by the pre-emptor who had come in possession of the land in 1967 in execution of the decree. Hence, the notification is not attracted to the case in hand justifying any amendment in the written statement."
2A Civil Review Petition No. 131-L of 1991 was filed against the aforesaid order which was disposed of vide judgment dated 3-12-1991 with the following observations:-- "We accept the review application, set aside our judgment under review, substitute it by one of qualified acceptance of appeal, setting aside the orders, permitting the petitioners/vendees to take up the ground of exemption under notification, before the trial Court. The trial Court shall determine whether alienations have taken place or not and whether it is necessary to proceed with the suit after impleading the alienees. The matter is remanded to the trial Court for the purpose."
3. In pursuance of the above judgment of the Honourable Supreme Court, a petition for amendment was moved by the petitioners/defendants in the trial Court which was rejected on 31- 7-1994. A Civil Miscellaneous Application .No. 12 of 1994 was made under Order 5, Rule 3 read with Order 17 and Rrule 5 Supreme Court Rules, 1980 and Article 190 of the Constitution. The aforesaid application was dismissed by the Honourable Supreme Court on 27-3-1995 with the following concluding observations:-- "It is also clear from the above observation that appellants were permitted to take up the ground of exemption under the notification before the trial Court. The trial Court having passed a judicial order after remand of the case by this Court and the said order being appealable, the contention that the order passed by the trial Court was not within the scope of remand order or that it came in conflict with the remand order, in the circumstances, can only be raised appropriately in appeal and not before this Court directly. However, as the appellants have not filed the appeal on account of pendency of this petition, the petitioners/appellants may apply to the appellate Court for extending the benefit of section 14 of the Limitation Act in accordance with the law. With these observations, the Civil Miscellaneous Appeal/application is dismissed. "
4.The present Civil Revision Petition was filed on 27-3-1995 in this Court and was fixed for hearing on 20-9-1995.
5. A Civil Review Petition No. 29 of 1995 for an order made in Civil Miscellaneous Petition No. 12 of 1994 was moved which was decided by the Honourable Supreme Court vide order dated 15-10- 1998 in the following terms:- "Dr. A. Basit learned counsel for the petitioner states that he would not press the review petition if a direction is issued to High Court to decide the pending C.R. No. 1732 of 1995 at an early date. The request made by the learned counsel appears to be reasonable as the litigation in this case stated in 1966 and the proceedings have yet not concluded. We are accordingly of the view that pending civil revision be decided by the High Court within two months from the date of receipt of this order.
With the above observation the review petition stands disposed of. Copy of this order be sent to the High Court immediately."
6.The copy of the aforesaid order of the Honourable Supreme Court was received in the General Branch of the High Court on 28-10-1998. In pursuance of the Order of the Honourable Supreme Court, the matter was expedited as desired.
7. Learned counsel for the petitioners has contended that the impugned order passed by the learned trial Court dismissing the amendment application was not only illegal but also contumacious as it was passed in total disregard of the observations made by the Honourable Supreme Court, whereby, it was permitted to the petitioners/defendants to apply for amendment of the written statement so that the matter in controversy may come to an end once for all.
However, the learned trial Court without applying mind to the facts of the case, proceeded to dismiss the application without realising that the matter in controversy could not be effectively decided without determining the effect of the notification, whereby, the land in question was taken out of the mischief of the pre-emption law. Like were, the learned trial Court ignored that the property in question having been further alienated and if so, what could be its possible effect on the suit for pre-emption. It was contended that these were the two prominent guide-lines provided to the learned trial Court by the Honourable Supreme Court of Pakistan which, however, were not properly taken into consideration by the Court below. It was, therefore, submitted that the impugned order of the learned trial Judge, dismissing the application for amendments was not only illegal but fanciful because while disallowing the amendments, the observation made by the Honourable Supreme Court in its order, dated 3-12-1991, though taken into consideration, but the order passed in the*review petition, dated 3-12-1991 was totally ignored, whereby, the previous order was set aside permitting the petitioners/vendees to take up the ground of exemption under notification and also the effect of the subsequent alienations.
8. Learned counsel for the respondents raised the preliminary objection regarding the competency of this revision petition. In this regard, a reference was made to the valuation of the suit for the purpose of court-fee as Rs.60.60, whereas, for the purpose of jurisdiction it was fixed as Rs.181.80 as per contents of paragraph No.6 of the plaint. The sale price of the suit land was ultimately determined as Rs.12,350, therefore, the revision petition was allegedly liable to be filed in the District Court as required by section 115(2) read with section 15 of C.P.C. Which inter alia provided that every suit should be instituted in the lowest Court of competent jurisdiction to try it. However, the petitioners instead of filing a revision petition to dispute the impugned order before the District Court, had chosen a wrong forum to go before the Supreme Court under Article 190 of the Constitution of Islamic Republic of Pakistan, 1973 and in the meantime, also instituted the present revision petition which too was hopelessly time-barred and no explanation whatsoever was given for bringing it within limitation. The mere fact that a wrong forum was chosen by the counsel of the party would not stretch the limitation period if the, matter was otherwise patently time-barred.
Even if a party intends to seek condonation of delay, the law requires that each day beyond the limitation period should be reasonably accounted for to cover up the delayed period. However, in the instant case, allegedly no such attempt was ever made and hence, the revision petition would be hopelessly time-barred. Even if for the sake of arguments, the delay was condoned even then, the revision petition had to be filed before the District Judge and, therefore, the same would now be sent to a Court of competent jurisdiction instead of dealing it on merits by this Court. The mere fact that the Honourable Supreme Court had specified a time limit for the disposal of this petition would not imply that it vested the Court with jurisdiction which otherwise did not vest in it as the same vested under section 115(2), C.Pt. In the Court of District Judge. Lastly, it was contended that, the allowing of amendment petition by the trial Court would have been an exercise in futility because the notification for exemption was not applicable to the facts of the present case as the sale in question had taken place earlier than the publication of the notification, whereby, the exemption was granted to the affectees of Mangla Dam. Likewise, the certificate of exemption was never issued or proved and as such, the amendments would not help in any way to the petitioners to non-suit the respondents/plaintiffs. It was, therefore, contended that even on merits, the amendment petition moved by the petitioners/defendants was rightly thrown out by the learned trial Judge and as such, he did not commit any irregularity so as to call for interference in the revisional jurisdiction. Similarly, the further alienation of the land to a third party was also of no consequence as held in the impugned order because it was done after the possession was taken by the respondents/plaintiffs in execution of the decree. To support the above points, reliance was placed on Muhammad Sharif v. Malik Abdur Razzaq 1991 MLD 1867 (Lahore), Karachi Building Control Authority v. Muhammad Arif Qureshi, Advocate 1992 CLC 1904 (Karachi), Sindh Employees Social Security Institution v. Habib Sugar Mills Limited, Nawabshah PLD 1993 Kar. 61, Ilahi Bakhsh and others v. Mst. Bilqees Begun PLD 1985 SC 393, Sadar Din v. Elahi Bakhsh and another PLD 1976 Lah. 1, Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957, Government of N.-W.F.P. Through Chief Secretary and 3 others v. Abdul Malik 1994 SCMR 833 (Supreme Court of Pakistan), Mirza Muhammad Saeed v. Shahab-ud-Din and 8 others PLD 1983 SC 385, Province of Punjab through Collector, District Gujrat and 2 others v. Muhammad Bashir and another 1997 MLD 806 (Lahore), Masud Ahmad and 2 others v. United Bank Limited 1992 SCMR 424, Lahore Development Authority v.
Muhammad Rashid 1997 SCMR 1224 (Supreme Court of Pakistan), Najeeb v. Sohbat Ali and others 1988 CLC 852 (Lahore), Mangta Khan and others v. Mst. Hamida Begun and others PLD 1981 SC 51, Qubran and 2 others v. Jam Fazal Karim through his Legal Heirs 1985 CLC 1498 (Lahore).
9Learned counsel for the petitioners in reply thereto submitted that since the impugned order dismissing the petition for amendment was in utter disregard of the order of the Honourable Supreme Court of Pakistan, therefore, a. Petition under Article 190 of the Constitution of Islamic Republic of Pakistan, 1973 was preferred in the first instance before the Honourable Supreme Court.
In the meantime, the impugned order was also challenged in the revisional jurisdiction of this Court which was also a right forum having concurrent jurisdiction with the Court of the District Judge under section 115, C.P.C. A reference was made to subsection (3) of section 115, C.P.C. That if the High Court or the District Court took cognizance of the revision petition then no further application on such matter would be maintainable. As such, it was contended that since the High Court had entertained this revision petition, therefore, having taken cognizance and being competent to take such cognizance, the revision petition was competent. It was also alleged that it is true that the petition was instituted beyond the period of limitation but that delay was occasioned in pursuing the remedy before the Supreme Court of Pakistan in the petition moved under Article 190 of the Constitution as aforesaid. The mere fact that the revision in this Court was filed beyond the period of limitation would, therefore, not make it incompetent particularly when condonation is sought on firm grounds by advancing good reasons of such delay as a petition was pending before the Supreme Court of Pakistan and in the meantime, this revision petition was also preferred. The aforesaid application before the Honourable Supreme Court was disposed of with the direction that this revision petition be decided by this Court within a specified time as the matter had grown fairly old. It was contended for petitioner that the order for placing the limit before the Supreme Court and the direction that the revision petition shall, be decided by the High Court would in no way mean that a narrow and technical view would be taken to throw this revision back to the District Court without deciding it on merit. The intention of the order of the Honourable Supreme Court was alleged to be that it shall be decided on merit and also within time limit by the High Court.
10. I have considered the arguments addressed at the Bar and have also carefully gone through the record which is quite voluminous and contained a number of orders including the orders of the Honourable Supreme Court. The learned trial Judge had relied upon the order of the Honourable Supreme Court, a portion of which was quoted in paragraph No.2 of this order. It is clear from the order of the Honourable Supreme Court above-referred that while accepting the review petition, judgment under review was set aside and was substituted by one of the qualified acceptance of appeal, setting aside the orders permitting petitioners/vendees to take up the ground of exemption under notification before the trial Court. The trial Court had to determine whether the alienation had taken place or not and whether it was necessary to proceed with the suit after impleading the alienees.. The trial Court instead of allowing the amendments of the pleading upon the application made in pursuance of the order of the Honourable Supreme Court acted in unusual manner to dispose of the petition for amendment by taking into consideration the notification of exemption and the question of further alienation without impleading the second vendee in the suit. In fact to reach a just, comprehensive and conclusive decision on the controversial issues between the parties such as whether or not the notification of exemption applied to the case in hand, whether the petitioners/vendees had obtained the requisite certificate of exemption as affectee of Mangla Dam and still more whether or not further alienation in favour of Irfan War, if any, had actually taken, if so when, and its effect on the present suit. It was absolutely necessary to allow the amendments sought for in the petition for amendments. The matter could only be correctly determined by amending the pleadings and if required by striking requisite issues and then calling upon the parties to lead their evidence for fair and proper adjudication of the case in hand. The trial Court did not apply its judicial mind to the aforesaid factors and by exercising its jurisdiction and discretion in arbitrary manner, decided the aforementioned questions regarding the notification, exemption certificate and further alienation of the land by simply looking at the documents and without amending the pleadings or framing the issues as aforesaid. The impugned order passed by the learned trial Court was, therefore, patently illegal and would not be liable to stand in the eyes of law. It is now well-settled that an order patently illegal and being tainted with capricious and arbitrary exercise of jurisdiction would be considered nullity in the eyes of law and as such, the question of limitation would not remain crucial while undoing such an unjust and illegal order. Even otherwise, the petitioner had approached the Honourable Supreme Court of Pakistan after dismissal of the amendment petition which was moved in pursuance of the order passed by the aforesaid Honourable Court. There was g nothing unusual in moving a petition before the Honourable Supreme Court of Pakistan for an order which was made in utter disregard of the observation made by the Honourable Supreme court.
11. It is true that according to the normal and usual practice, a matter is to be instituted before the Court of the lowest grade and that would also be true in respect of a revision petition which was to be instituted before the District Court, if it was within its jurisdiction. However, the present petition was directly made in this Court which had a plenary and supervisory jurisdiction over the subordinate Courts in respect of their judicial functioning. This power has been given under the Constitution to the High Court and also under section 115 of C.P.C. Which is an exceptional and effective power intended to secure the rightful exercise of the High Court's superintending and visitorial power of correction, unhindered by technicalities. Once the High Court takes cognizance of a revision petition, the jurisdiction of the inferior Court would be ousted as would be clear from subsection (3) of section 115 of C.P.C. This revision petition was admitted for hearing by one of my learned predecessors on 20-9-1995 and remained pending since then, and an order had to be made by the Honourable Supreme Court of Pakistan for its disposal within the time frame as the matter in question had become very old. It is, thus, obvious that after the cognizance had been taken and the Supreme Court having directed to dispose of this revision petition within a prescribed period, it could be heard and decided on its own merits in view of provisions contained in section 115, Cr.P.C., which as pointed out above empowers this. Court with the Constitutional supervisory jurisdiction of the Courts subordinate to it. Hence, it cannot be urged that this Court should not decide this revision petition on its merits.
12. Learned counsel for the petitioners submitted that since the matter had become too old, therefore, taking into account the material already on record such as notification, etc., the matter be finally decided and the pre-emption suit be dismissed without remanding the case to the trial Court after allowing the amendments. This prayer cannot be conceded because if allowed, it would burden this order with the same irregularity and illegality with which the order of the trial Court suffered.
13. In view of my above discussion, this revision petition is allowed. The impugned order of the learned trial Court is set aside, the amendment petition moved by the petitioners before the learned trial Court is allowed and the case is sent back to the Court concerned for proceeding with the same after allowing the amendments prayed in the aforesaid petition.
14: Since the matter has become quite old, therefore, the learned trial Court shall proceed expeditiously to dispose of the case in hand by an early date. The parties are directed to appear in the Court below on 7-1-1999 for further proceedings. The parties are, however, left to bear their own expenses due to the intricate legal questions involved in this matter.