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Civil Petition for Special Leave to Appeal No. 189 of 1971, decided on 15th June 1973.
(On appeal from the judgment and order of the Lahore High Court, dated the 4th April 1972, in Civil Revision No. 337 of 1970).
O. XLI, r. 20‑Impleading of interested parties‑Appeal filed by K (pre‑emptor) impleading vendee and A and S (other pre‑emptors) Appeal also by A and legal representatives of S on S's death ‑ Application for impleading legal representatives of Sin appeal by K‑Contention raised that K having filed appeal against dead person (viz. S) legal representatives of S could not be impleaded under O. XLI, . 20‑Held, A and legal representatives of S also having filed appeal, defect in K's appeal stood cured and legal representatives of S rightly impleaded in appeal‑Punjab Pre‑emption Act (I of 1913), Ss. 7 do 28.
Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan and another P L D 1964 S C 559 ; The Province of East Pakistan v. Alajor Nai,ab Khc. waia Hasan Askary and others P L D 1971 S C 82; V. P. R. V. Chocicaltngam Chet ti: v. Seethai Ache and others A I R 1927 P C 252; Muhammad Gut and others v. Mst. Gul Marjan and others P L D 1964 Pesh.187 and Labhu Ram and others v. Ram Partap and others A I R 1944 Lah. 76 distinguished.
A. S. Salam, Advocate Supreme Court instructed by Masood Akhtar, Advocate‑on‑Record for Petitioner.
Masood Javed, Advocate (absent) Supreme Court instructed by Abdul Karim, Advocate‑on‑Record for Respondent No. 1.
Nemo for Respondents Nos. 2‑8.
Date of hearing : 15th June 1973.
The property in dispute is land measuring 116 kanals and 13 marlas, which was purchased by the petitioner by a registered sale deed dated the 23rd January 1962. Respondent No. 2 and the predecessor‑in‑interest of respondents Nos. 3 to 8, namely, Ashiq Muhammad and Sher Muhammad, instituted a suit for pre‑emption on the 17th October 1962. Respondent No. 1 Malik Khan Muhammad also instituted a suit for per‑emption on the 22nd January 1963. The two suits were consolidated under section 2 8 of the Punjab Pre‑emption Act and were dismissed on the 21st November 1969, on the ground that the pre‑emptors had no better right of pre‑emption. On the 9th December 1969, Sher Muhammad one of the co‑plaintiffs in the first suit, died. On the 9th January 1970, Malik Khan Muhammad filed an appeal impleading the vendee‑petitioner and Asbiq Muhammad and Sher Muhammad as parties to the appeal. Subsequently, Ashiq Muhammad and the legal representatives of Sher Muhammad also filed an appeal.
On the 16th February 1970, an application was made for impleading the legal representatives of Sher Muhammad in the appeal filed by Malik Khan Muhammad. The petitioner and the rival pre‑emptors objected to the application. The objection was rejected by the Appellate Court on the 31st March 1970, and allowed the application. The matter was taken in revision and the revision was dismissed on the 4th April 1970. The petitioner seeks permission to file an appeal against the said order.
Mr. Abdus Salam, learned counsel for the petitioner, has contended that Malik Khan Muhammad filed an appeal against the dead person and the learned Appellate Court had no jurisdic tion to implead the legal representatives of Sher Muhammad under Order XLI, rule 20, C. P. C. In support of his contention, he has relied on the cases of Muhammad Jamil v. The Chairman, Industrial Court, West Pakistan and another (PLD1964SC559), The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD1971SC82), V. P. R. V. Chockalingam Chetty v. Seethai Ache and others (AIR 1927 P C 252), Muhammad Gul and others v. Mst. Gul Marjan and others (P L D 1964 Pesh. 187) and Labbu Ram and others v. Ram Partap and others (A I R 1944 Lah. 76).
All the cases cited by the learned counsel are distinguishable in the present case. Ashiq Muhammad and the legal representatives of deceased Sher Muhammad had also filed an appeal and, therefore, the defect in the appeal of Malik Khan Muhammad had been cured. In view of the filing of the appeal by the legal representatives of Sher Muhammad, the Appellate Court was perfectly justified in impleading the legal representatives of Sher Muhammad in the appeal filed by Malik Khan Muhammad under Order XLI, rule 20, C. P. C. There is no merit in the petition. The petition is dismissed.
Petition dismissed.
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