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Petitioner: MUHAMMAD FIAZ VS Respondent: Ch. AZHAR HUSSAINHonorable Justice Sardar Muhammad AslamCh. Muhammad Ishaq Sipra,Malik Abdul Wahid
2005 Y L R 2011
2005 Y L R 2011
[Lahore]
Before Sardar Muhammad Aslam, J
MUHAMMAD FIAZ---Petitioner
versus
Ch. AZHAR HUSSAIN and 7 others---Respondents
C.R. No.1133 of 2004, heard on 14th May, 2004.
Punjab Pre-emptiest Act (IX of 1991)---
----S. 5---Right of pre-emption---Disguise---Plaintiff filed suit for possession through pre-emption---Defendants had pleaded that the transaction was exchange and not sale---Plaintiff with permission of Court impleaded the persons who allegedly exchanged their land with the suit property---Such impleadment was beyond the period of limitation---Trial Court dismissed the suit on the grounds that impleaded persons got notice after expiry of limitation and date, time and place of performance of Talbs was not mentioned in plaint-Appeal had also failed---Validity---Status of impleaded persons was no more than the vendors and they were not the necessary party in the proceedings---Effective decree could be passed even in their absence---If plaintiff's suit was decreed he will step into the shoes of vendee---Further issue about the Talbs was framed and before recording of respective evidence---Findings of the Courts below being erroneous were set aside in circumstances.
Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs and another 2000 SCMR 314 ref.
Ch. Muhammad Ishaq Sipra for Petitioner.
Malik Abdul Wahid for Respondents.
Date of hearing: 14th May, 2004
JUDGMENT
With the consent of the learned counsel for the parties this petition is admitted to regular hearing and is being disposed of as notice case.
2. The petitioner filed a suit for possession through pre-emption against respondent No.1. The respondents entered appearance and filed written statement. He pleaded that the land in dispute is a transaction of an exchange and not sale as claimed by the petitioner. The petitioner filed an application for impleadment of respondents Nos.2 to 8, who allegedly exchanged the suit property to respondent No.1. This application was allowed by the learned trial Court. Revision against this order is stated to have been dismissed by the learned revisional Court. Controversy raised between the parties was put into issues. On 26-1-1999 an additional Issue No.9 "whether the suit is time barred" was framed. This issue was treated as preliminary issue. The parties did not produce evidence on this issue and addressed their oral arguments on 8-2-1999. The learned trial Court dismissed the suit of the petitioner as barred by time and an appeal was preferred, which, too, was dismissed. Civil revision calls in question both the judgments of the learned Courts below.
3. The learned counsel for the petitioner contends that the suit was filed against defendant No.1 on 15-5-1995. It was within time as the transaction of the disputed land took place on 30-3-1995. The learned Courts below held that the suit against defendants Nos.2 to 8 is barred by time as they will be deemed to have been impleaded on the date when service is effected upon them. The learned trial Court also observed that the suit cannot proceed in absence of details of date, time and place in the plaint. The learned Additional District Judge also concurred with the learned trial Court and observed that the suit was barred by time. At the same time, he also held that for failure of performance of Talbs by not mentioning the necessary details in plaint in regard to date, time and place, the suit merited dismissal.
4. Reasoning of both the learned Courts' below is against law and thus not sustainable. The petitioner is pre-empting the land which had been transferred by defendants Nos.2 to 8, whose status is no more than of the vendors. They were not even necessary party in the proceedings. Though they were impleaded as respondents but were only proper party and in their absence effective decision could take place. The petitioner if his case is decreed will step into shoes of the vendee/respondents No.1. The land of respondent No.1 transferred to respondents Nos.2 to 9 will remain intact as the same has not been questioned. Whether transaction in dispute is a sale or exchange was reflected in Issue No.6. The parties are yet to lead evidence in trial in support of their respective pleas.
5. Findings of the learned Courts below as to performance of Talbs are erroneous. Issue No.8 was framed. The parties and their learned counsel have addressed arguments only on Issue No.9 which related to the limitation. The learned trial Court without putting the petitioner to notice decided Issue No.8 without recording any evidence. The learned Appellate Court also agreed with the view of the learned trial Court without considering the facts that the parties on framing of issue are to be allowed to lead their respective evidence. View expressed by both the learned Courts below is against law laid down by the Honourable Supreme Court of Pakistan in case of Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs and another 2000 SCMR 314.
6. The upshot of the above discussion is that this civil revision is allowed, the judgments of the learned Courts below are set aside and the matter is remitted back to the learned trial Court for decision on merits after granting opportunity to the parties to produce their respective evidence on, the issues framed. The issue of limitation and performance of Talbs be taken up and decided along with other issues, after evidence.
M.I./M-361/L Revision accepted.