SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 30-4-1998 whereby the appeal filed by the appellant, herein, was dismissed and findings of the Additional District Judge were maintained.
2. The brief facts of the case are that a pre-emption suit for declaration/possession in the Court of Sub-Judge, Bhimber, against sale-deed executed by Muhammad Aslam and others for a consideration of Rs.2,20,000 on 7-7-1986 was filed by Rehmat A.I, deceased. Subsequently, a cross suit of pre-emption was filed by the appellant, herein. However, the suit filed by Rehmat A.I was dismissed for non-deposit of proclamation fee. Consequently, he filed an appeal before the District Judge against the dismissal of his suit but the same also failed. However, the appeal filed to the High Court was accepted and the case was remanded to the trial Court to decide the same afresh according to law. Meanwhile, on the application of the appellant and the vendees, a decree for pre-emption was passed in favour of the appellant, herein, without any reference to the cross suit filed by Rehmat A.I who was also impleaded as a defendant in the suit filed by the appellant, herein. Thereafter, the plaint filed in the cross suit by Rehmat A.I was amended assailing the legality of pre-emption decree which had already been passed in favour of the appellant, herein, inter alia, on the ground that appellant-pre-emptor did not deposit the pre-emption money in the Court as was directed by the trial Court within the period fixed by the Court, therefore, his suit stood dismissed; the said decree was also challenged as being collusive. The learned Sub-Judge dismissed the suit filed by Rehmat A.I, pre-emptor, but on appeal to the Additional District Judge by Rehmat A.I, pre-emptor, the suit filed by the appellant, herein, was dismissed on the ground that he had failed to deposit the pre-emption money within the period fixed by the Court and a pre- emption decree in the cross suit was passed in favour of Rehmat A.I. On appeal to the High Court, the findings of the Additional District Judge were upheld.
3. The main stress of the learned counsel for the appellant was to the effect that the payment of pre-emption amount by- the appellant, herein, out of the Court was valid as has been held in some of the authorities cited at the Bar. Thus, the learned counsel has argued that- the view taken by the lower appellate Courts that as the pre-emption money was not deposited in the Court as was directed by the decree, the suit filed by Manzoor Ahmad plaintiff-appellant, stood dismissed is not correct. In alternative, the learned counsel has stressed that instead of dismissing the suit filed by Manzoor Ahmad, appellant herein, the Additional District Judge should have remanded the case to the trial Court for hearing both the pre-emption suits, one filed by Rehmat A.I, deceased, and the other filed by the appellant, herein, concurrently after taking the written statements from the rival pre--emptors in the cross suits.
4. In reply, Raja, Muhammad Siddique Khan, Advocate, the learned counsel for the respondents, has submitted that in case of rival pre-emptor, the Legislature was wise enough to provide that money is to be deposited in the Court instead of direct payment to the vendees. So as to deter them from filing collusive pre-emption suits which are instituted with the connivance of the vendees. Thus, the learned counsel has submitted that the lower appellate Courts have rightly dismissed the suit for non-compliance of the judgment and decree of the trial Court whereby the plaintiff-pre-emptor had to deposit the pre-emption money in the Court within 90 days after the decree in his favour. When the learned counsel was asked as to whether it was not incumbent upon the trial Court to consolidated both the suits in view of the relevant provisions contained in the Right of Prior Purchase Act, the learned counsel did not, oppose the suggestion that there should be concurrent hearing of the same.
5. We have given due consideration to the arguments raised at the Bar. Irrespective of the controversy as to whether in a pre-emption suit, the payment out of the Court in violation of the provisions contained in' Order 20, rule 14, C.P.C., would be deemed to be a valid compliance of the decree or not, the fact remains that in the instant case, the decree in favour of the appellant, herein, was passed on 5-3-1990, whereby he was directed to deposit the pre-emption amount in the Court within 90 days. However, on the subsequent admission of the vendees that they had received the pre--emption amount out of the Court, the trial Court confirmed the decree in favour of the appellant, herein, on 27-5-1990. The appeal filed by Rehmat A.I was accepted by the High Court and his pre-emption suit was remanded to the trial Court for trial on 27-1-1990, i.e. Before passing of the decree in favour of the appellant, herein. It may also be observed that Rehmat A.I, deceased, was a party in the suit filed by the appellant, herein, but the judgment and decree passed by the trial Court does not show that ex parte proceedings were taken against him and the said judgment and decree against him were passed ex parte. However, it is evident that under section 27 of the Right of Prior Purchase Act read with rule 14 of Order 20 of the C.P.C., in case of more than one pre-emption suits, the hearing of the suits is to be held simultaneously after their consolidation. For the sake of convenience, section 27 of the Right of Prior Purchase Act and Order 20, rule 14 of the C.P.C. Are reproduced as under:-- Section 27 of the Right of Prior Purchase Act:-- "Concurrent hearing of suits.----When more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of other suits and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right. "
Order 20, rule 14, C.P.C.
",(14)(1) Decree in pre-emption suit.--Where the Court decrees a claim to pre-emption in respect of a particular sale of property andthe purchase-money has not been paid into Court, the decree shall:---
(a) specify a day on or before which the purchase money shall be so paid; and
(b) direct that on payment into Court of such purchase-money together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have 'accrued from the date of such payment, but that , if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to preemption the decree shall direct--
(a) If and in so far as the claims decreed are equal in decree that the claim of each pre-emptor complvin2 with the provisions of sub rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default have taken effect and
(b) if and in so far as the claims decreed are different in degree that the claim of the inferior pre- emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions--
6. It is evident from the above mentioned provisions that the decree passed in favour of Manzoor Ahmad, appellant herein, by the trial Court without consolidating both the suits as envisaged under section 27 of the Right of Prior Purchase Act is not binding on Rehmat A.I or his legal representatives, especially so when his suit had already been remanded to the I trial Court. A reference may be made to a case reported as Muhammad Akram Khan v. Mst. Kaniz Fatima 8llai (PLD 1952 Lah. 489), wherein it has been held that under section 28 of the Punjab Pre-emption Act, a decree obtained by one pre-emptor during the pendency, of another suit in violation of the aforesaid provision is of no avail against the rival pre-emptor whose suit was pending. Identical view was taken in cases reported as Kandan Lal v. Amar Singh (AIR 1927 All. 664) and Mahmood Khan v. Khan Muhammad (PLD 1973 Lah. 806). Thus, irrespective of decree of pre--emption in favour of the appellant, herein, the fact remains that the same being in violation of the above mentioned provisions of law was not binding upon the rival pre-emptor or his legal representatives.
Thus, we set aside the impugned judgment and decree in favour of the respondents and also set aside the judgment and decree in favour of the appellant, herein, and remand both the suits to the trial Court to proceed with the trial of the same afresh after the consolidation of the suits according to law. After the consolidation of the suits, the rival pre-emptors would be at liberty to file written statements in cross suits and. Lead further evidence in support and rebuttal of the issues framed.
After the trial, both the suits would be decided afresh. The appeal stands partly accepted as indicated above with no order as to the costs.