' This judgment shall decide Writ Petitions Nos.375 of 1993 and 376 of 1993 as they proceed against a common judgment, dated 28-11-1992 of learned District Judge, Khanewal.
2. The undisputed facts in both these cases are that suit land was purchased by the petitioner vide a Court decree, dated 31-7-1983. The respondents Nos. 1 and 2 filed rival pre-emption suits. The suits were consolidated and trial by a learned Civil Judge, Khanewal. Both the pre-emptors claimed themselves to be co-owners in the suit land. The learned trial Court found the said rival pre-emptors to be co-owners in the suit land and proceeded to decree both the suits vide a judgment and decree, dated 31-1-1988. Pehlwan respondent was given 2/3rd share while the remaining 1/3rd was given to Muhammad Shafi respondent. Both the respondents complied with the terms of the decree and file execution proceedings and got the possession of the land in execution. On 3-12-1990 the petitioner filed an application under section 12(2), C.P.C. Praying' that the said decree, dated 31-1-1988 be set aside in the light of the judgment of Shariat Appellate Bench of the Supreme Court of Pakistan in Said Kamal's case PLD 1986 SC 360. This application was resisted by the successful pre-emptors. The application was dismissed by the learned trial Court vide a judgment and decree, dated 18-7-1991. The petitioner then filed revision petitions which were heard by learned District Judge, Khanewal who dismissed the same on 28-11-1992.
3. Learned counsel for the petitioner contends that his application under section 12(2), C.P.C. Was quite competent as the decree passed by the learned trial Court on 31-1-1988 after the said judgment in Said Kamal's case had taken effect, was a nullity in the eye of Law and was liable to be declared without jurisdiction. Syed Muhammad Ali Gilani, Advocate for the respondents 1 and 2, on the other hand, argues that in view of the conduct of the petitioner apparent on the face of record, the application under section 12(2), C.P.C. Did not lie and as such had rightly been dismissed by the learned respondents Nos.4 and 5.
4. I have gone through the records appended with both these writ petitions as I have stated above the facts narrated hereinabove are undisputed. Learned counsel for the petitioner relies on the case of "Aurangzeb v. Hassan and others" (NLR 1995 Civil 120)- wherein a learned Single Judge of this Court had held that a decree passed after the said judgment in the case of Syed Kamal Shah had taken effect, is without jurisdiction and as such can be declared to be so under section 12(2), C.P.C. This judgment fully supports the case of the petitioner. However, learned counsel for the respondents 1 and 2, on the other hand, has cited the case of Muhammad Khan v. Massan (1999 SCM R 2464 wherein the Supreme Court of Pakistan has taken a different view of the matter. In the said case, a pre-emption suit filed under the provisions of Punjab Pre-emption Act, 1913 was decreed ex parte on 20-10-1987. The amount deposited by the pre-emptor was withdrawn by the vendee and the decree was executed and satisfied. On 30-1-1989 an application under section 12(2), C.P.C. Was filed for setting aside of the decree on the same grounds as the decree in the present case is sought to be set aside. This application was ultimately allowed by this Court. The matter was taken in appeal before the Supreme Court of Pakistan and it was observed by their lordships that a decree passed after the cut-out date provided in Syed Kamal's case is a void decree but according to their lordships, such a void decree is a kind of an illegal order and has to be got set aside firstly by available modes. Their lordships opined that the vendee took no steps to get the ex parte decree set aside in the first instance by filing the usual proceedings under Order IX, Rule 13, C.P.C. The conduct of the vendee in waiting till the decree had been executed and satisfied, was also held to be a conduct which cannot be countenanced. The appeal was allowed and the application under section 12(2), C.P.C. Was dismissed.
5. Learned counsel for the petitioner when confronted with the said judgment, has only this much to argue that in the said case, the vendee had withdrawn the amount deposited by the pre- emptor whereas in the present case, his client has not done so. This may be so but the fact remains that the decree was inter partes. No reason has been stated as to why the appeal has not been filed when the said right was available to the petitioner. Like the precedent case quoted by the learned counsel for respondents Nos.1 and 2, the petitioner allowed the respondents to execute the decree and get the possession. In this view of the matter, I find that the present case is squarely covered by the judgment in the said case of "Muhammad Khan v. Massan" relied upon by learned counsel for the respondents 1 and 2.
6. In the peculiar facts and circumstances present on record, this case can be examined from another angle, as well. The ratio of the Syed Kamal case inter alia was that in absence of Talbs, a suit for preemption would, not be competent. The said judgment took effect on 31-7-1986. The suit thereafter remained pending till 31-1-1988 when it was ultimately decreed. Now the effect of the said judgment is that question of Talbs becomes the basic and fundamental issue in every pre- emption suit but the fact remains that it is essentially a question of fact whether or not the requisite Talbs were made by the plaintiff and all the conditions regarding thereto were satisfied in any given case. This being an objection regarding pleading of certain facts by the preemptor/plaintiff on the one hand and denial of said facts or the assertion by the defendant on the other that such Talbs have not been made in accordance with the conditions laid down by Law. Thus, basically the objection becomes one of law and fact and the defendant in a given case has the choice either to raise or to give-up the said objection regarding Talbs particularly when there is no possible hindrance in the way of such a defendant to raise such an objection. In the present case, it can be safely assumed that the defendant i,e, present petitioner opted to give up the said objection and proceeded to follow the proceedings being carried on by the learned Civil Judge even after the said judgment in Syed Kamal's case had taken effect. In this view of the matter, if in the absence of any objection by the petitioner, the learned Civil Judge proceeded, obviously on the assumption, that there is possibly no objection to the suit on the said grounds, it cannot be said that the judgment passed by him suffers from any infirmity. Reference be made to the case of "Mst. Kharq and 2 others v. Sher Afzal alias Sherey" (1992 SCM R 1844).
7. In view of the above discussion, I do not fmd the impugned order to suffer from any jurisdiction or legal defect. Both the writ petitions are accordingly dismissed leaving the parties to bear their own costs.