C.M. No,1 of 2002 This is an application for restoration of the main writ petition which was dismissed for non- prosecution by this Court vide order, dated 4-3-2002.
2. The learned counsel of the applicant was asked to argue the main writ petition, but he had shown his inability to argue the main case. The learned counsel of the applicant insisted that application may be decided today.
3. The learned counsel of the applicant/petitioner submits that applicant and his counsel entered appearance in the Court Room at 9-00 a.m. on the said date when they were informed that his case was dismissed for non-prosecution. He further submits that absence of the applicant and his counsel on the pointed date, was not intentional but on account of unavoidable circumstances.
The application is supported only by affidavit of the Advocate and not supported by affidavit of the applicant.
4. I have given my anxious consideration to the contention of the learned counsel of the applicant/petitioner and perused the record myself.
5. The case has chequered history, therefore, it is better and appropriate to reproduce the same in chronological order to resolve the controversy between the parties. The main writ petition was fixed' on 23-7-1988. On the said date, neither the petitioner nor his counsel was present and the case was adjourned for 6-8-1988. The case was adjourned on the request of the learned counsel of the petitioner/applicant for preparation which was allowed. Then the case was fixed on various dates and finally on 26-3-1992 both the learned counsel of the parties entered appearance. The learned counsel of the respondents raised preliminary objection that no writ can issue in aid of injustice. According to the learned counsel, the decree of the trial Court was executed and in consequence thereof, possession of the land in question was given to the respondent Riaz Ahmad.
According to the learned counsel, he was in the cultivating possession of the land in question since then. In support of his contention, he relied upon the following judgments:-- Tufail Muhammad v. Raja Muhammad Zia-ullah and others (PLD 1965 SC 269); Nawab Syed Raunaq Ali and others v. Chief Settlement and others (PLD 1973 SC 236) and Federation of Pakistan and others v. Haji M. Saif-ullah and others (PLD 1989 SC 166).
The learned counsel of the petitioner/ applicant got adjournment to peruse the authorities cited by the learned counsel of the respondents, which was allowed. The writ petition was dismissed for non-prosecution on 29-1-2001. Subsequently, the same was restored vide order, dated 28-2-2001, then case was fixed for 4-3-2002. On the said date, following order was passed:-- "Despite notice, respondent No,3 failed to appear, therefore, ex parte order is passed , against respondent No,3."
"The list of old cases was sent to the respective members of the bar with the following note:-- 'Old cases will not be adjourned except with prior adjustment and with prior consent of the opposite counsel.'
The learned counsel of the petitioner did not get the case adjusted in terms of aforesaid note.
Despite repeated calls, nobody entered appearance on behalf of the petitioner. The same is dismissed for non-prosecution."
6. It is pertinent to mention here that cause list qua the old cases was sent to the respective members of the Bar with the aforesaid note. It is also pertinent to mention here that old cases are fixed after urgent matters, coupled with facts that the applicant did not furnish sufficient ground for his own absence on the said date and did not attach affidavit alongwith the application. It is settled principle of law that the applicant petitioner must have to explain reasons for his absence but the applicant failed to furnish any sufficient cause for his nonappearance on the said date.
This writ petition is pending since 1988. Keeping in view of this fact, I requested the learned counsel of the applicant to argue the main writ petition but he had shown his inability to argue the main case.
7. The preliminary objection was raised by the learned counsel of the respondents in the year 1992 that the writ petition is liable to be dismissed as substantial justice has been done between the parties. As is evident from order, dated 26-3-1992, the learned counsel of the applicant/petitioner got the adjournment to study the case law cited by the learned counsel of the respondents. Since the decree has been implemented. However, in the interest of justice and fairplay, I myself has gone through the record to resolve the controversy on merits as per principle laid down by the llon'ble Supreme Court in Muhammad Haleem's case (PLD 1969 SC 270).
8. Brief facts out of which present writ petition arises are that Riaz Ahmad, respondent No,3 filed a suit for pre-emption against the petitioner qua the land in question. A similar suit was also tiled by one Siraj Din against the petitioner qua the property in question. The learned trial Court consolidated both the suits and out of pleadings of the parties, the following issues were framed by the learned trial Court:-- Issues (1)Whether plaintiff has a superior right of pre-emption to that of the vendees?
(2) Whether Siraj Din has a superior right of pre-emption to that of the vendees?
(3) If Issues Nos,1 and 2 are found in the affirmative what in the order of the pre-emptive rights of preemptors?
(4) Whether ostensible sale price has been paid or fixed in good faith?
(5) What is the market value of the suit-land`?
(6) Whether these suits are time-barred?
(7) Whether these suits are for partial pre-emption?
(8) Whether both the suits are not properly valued?
(9) Whether description of the suit-land is not correct?
(10) Whether vendees have effected improvements of the value of Rs,10,000. If so, whether they are entitled to recover this amount from the pre-emptors?
(11) Whether the vendees are entitled to recover District Council fee paid by them?'
(12) Whether the pre-emptors are estopped to bring these suits?
(13) Relief.
9. Learned trial Court decreed the suit of Riaz Ahmad, respondent on 21-1-1978 with the direction that he should deposit the pre-emption money of Rs,1,12,000 less 1/5th if already paid on or before 21-3-1978 failing which the suit shall stand dismissed with costs. It was further directed that in case of dismissal of the suit of Riaz Ahmad, the second 'suit of Siraj Din shall stand decreed on payment of, the above amount upto 21-4-1978, failing which his suit shall also be dismissed. In obedience to the judgment and decree of the learned trial Court, respondent Riaz Ahmad deposited the pre- emption money before the target date. The decree was accordingly executed and as a consequeace thereof, possession of iie suit-land was obtained by the decree-holder. The petitioner being aggrieved filed appeal before the learnedAdditional District Judge Sheikhupura. It is pertinent to Mention here that the petitioner/appellant did not plead Siraj Din as party in the case.
On an objection having been raised by the other side, the vendees moved an application requesting that they be permitted to implead Siraj Din as a party in the case. The application was contested by the contesting respondent Riaz Ahmad, The learned Appellate Court impleaded Siraj Din as party in the case. The First Appellate Court accepted the appeal and remanded the case to the learned trial Court vide judgment, dated 6-5-1990 with the direction that it shall give specific finding on Issue No,8. On remand, the learned Senior Civil Judge recorded fresh evidence produced by the parties and vide his order, dated 15-3-1981 came to the conclusion that the Court fee already paid by the respondentplainff f was correct. With this finding on issue No,8, learned trial Court proceed to uphold his earlier judgment and decree vide the above order. Thereafter, the petitioner challenged the vires of the judgment and decree of the learned trial Court by filing Revision Petition No,474 of 1981 which was admitted for regular hearing. However. the revision petition of the petitioner was transferred to the learned. First Appellate Court Consequently, the same was dismissed by the learned Additional District Judge, Sheikhupura on 18-6-1988 on the ground that Siraj Din w as not impleaded as a party in the proceedings and that certain copies of the pleadings of the parties were not annexed with the revision petition under section 115 of C.P.C.
10. The contents of writ petition reveal that Siraj Din was not necessary or proper party in the case, and findings arrived at by, the revisional Court are not Warranted by law . The contents of the writ petition funnel', reveal that Siraj Din was already non-suited in the first round of litigation by the learned trial Court. It is pertinent to mention here that the petitioner did not implead. Siraj Din as party in the present - writ petition. The question of determination is whether Siraj Din is necessary party or not. The necessary party means the one whose presence on record is enjoined by law or in whose absence, no effective decision can be given as per principle laid down in case "Thakar Hari Ram. v. Central Government through Secretary, Commerce Department Delhi", (AIR 1941 Lahore 120).
The aforesaid definition was approved by this Court in the following judgments:-- "Gut Muhammad and another v. Mir Zaman and another" (PLD. 1954 Lahore 406); "National Bank of Pakistan v. Sved Muzammal Hussain" (PLD 1965 (W.) Karachi 633) and "Muhammad Suleman. v. Abdul Rashid and 13 others" (PLD 1987 Lahore 387).
By virtue of section 28 of the Punjab Preemption Act, rival pre-emptor is necessary and proper party. This omission is serious and fatal and writ petition is liable to be dismissed as per principle laid down by the Hon'ble Supreme Court in case "Abdul .Majid and others v. Abdul Ghafoor Khan and others" (PLD 1982 SC 146) and "The Evacuee Trust Property Board, Lahore. v. Mst. Farkhanda.
Akhtar and others" (1989 SCMR 1589). The above mentioned both suits were consolidated and decided by one consolidated judgment, therefore, Siraj Din is proper and necessary party as per principle laid down by this Cour do case "Mian Ghulam Muhammad v.' The Collector Montgomery and 2 others" (PLD 1973 Lah.528). The revision petition of, the petitioner was dismissed by revisional Court on the ground that the petitioner failed to implead the .rival pre-emptor as resnondent/delendant. The petitioner did not implead the aforesaid Siraj Din the present writ petition as party, therefore, the writ petition is liable to be dismissed as per principle laid down by the Hon'ble Supreme Court in Rameez-ul-Haq's case (PLD 1992 SC 221).
In view of what has been discussed above, I am not inclined to exercise my discretion in favour of the petitioner, therefore, this application as well as the main writ petition have no merits and the same are dismissed.