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Suo Motu Civil Revision No. 1 of 1975, decided on 18th June 1976.

S. 115----Revision (civil)-Connected separate suits filed by two different plaintiffs, A and B-Case of B stayed by trial Court till decision of slit of A-Suit of A and appeal dismissed by lower Court and A filing revision in High Court-B's case found by High Court to require decision first-Order of lower Court set aside A's suit stayed and Y's suit directed to be disposed of first.

Lila v. Mahange and others A I R 1931 All. 623 ; Falah-ul-Momineen Trust v. V. P. Abdullah P L D 1970 Kar. 179 and Maxwell on Interpretation of Statutes, 10th Edn., p. 136 ref.

Abdus Samad Khan for Petitioner.

S. Rafaqat Ali Shah for Respondent.

By mutation No. 2240 attested on 23-12-1967, Fazal Ahmad of Ghazi Kot purchased and Khasra Nos. 21 and 22 and this transaction of sale was pre empted by Abdul Ghani whose suit and appeal having been dismissed came in revision to this Court. My learned brother Qaisar Khan, J. observed that the case of the pre-emptor Abdul Ghani who claimed superiority of pre-emption was resisted by the vendor on equal ground of contiguity, based on a sale in his favour of Khasra No. 153 land, contiguous to the suit land which was purchased by him prior to the institution of the suit under consideration. It i3 to be noted that the transaction of Khasra No. 153 was pre-empted by Muhammad Jan and the pendency of the suit having been brought to the notice of Mr. Qaisar Khan, J, he directed on 2-6-1975 the parties to furnish certified copies regarding the, result of the case of Muhammad Jan v. Fazal Ahmad. On 25-7-75, Mr. Qaisar Khan, J. passed the following order -

"This order should be read in continuation of my order dated 2-6-75. The facts of this case (sic) was sold on 23-12-67 and the sale was pre-empted on 18-12-196:8. Fazal Ahmad vendee contested the right of Abdul Ghani on the basis of contiguity alleging that he had also purchased Khasra No. 153 on 23-1-1968 which lay contiguous to the disputed Khasra Nos. 21 and 22. Both the lower Courts have held that the defendant-vendee had purchased in fact Khasra No. 153 contiguous to the disputed khasra numbers and they therefore, dismissed the suit and appeal of the plaintiff."

2. On the other hand the purchase of Khasra No 153 along with some otter khasra numbers by Fazal Ahmad on 23-1-68 was also pre-empted by one Muhammad Jan on 27-5-68. Muhammad Jan claimed superior right on the basis of contiguity and there Fazal Ahmad alleged that since he was the owner of Khasra Nos. 21 and 22 by purchase which are in dispute in this suit and which were contiguous to Khasra No. 15 3, he could therefore, defeat Muhammad Jan's right. On that ground the suit of Muhammad Jan was dismissed on 13-11-1976. Muhammad Jan went up in appeal to the Court of the District Judge ant the District Judge came to the conclusion that the suit of Muhammad Jan could not be dismissed till the suit of Abdul Ghani against Fazal Ahmad for possession of Khasra Nos. 21 and 22 by pre-emption had been finally decided. He, therefore, accepted the appeal, set aside the judgment and decree of the lower Court and remanded the case track on 22-3-1971 to the lower Court directing him to keep the case pending till the decision of the case of Abdul Ghani against Fazal Ahmad. It is a pity, however, that *at case was not taken up to the High Court in revision or appeal. Now looking at the two cases I am of the opinion that the case of Muhammad Jan had to be decided first and riot that of Abdul Ghani and the suit of Abdul Ghani has, therefore, to be stayed till the suit of Muhammad Jan bas been finally decided because the sale in the suit of Abdul Ghani had taken place earlier then the sale in the suit of Muhammad Jan. Under the circumstances, the suit regarding the later sale which had been pre-empted had to be decided first. I, therefore, order that this revision petition should be kept pending till the decision of the suit filed by Muhammad Jan.

3. But since the District Judge has already passed an order that the suit of Muhammad Jan is to be kept pending till the decision of this case, under these circumstances both the quits will lie pending indefinitely without any action teeing taken fn it I am, therefore, constrained to exercise the revisional powers of this Court in the case or Muhammad Jan and, therefore, order that notices to be issued to the parties in that case for setting aside the order of the learned District Judge with respect to the stay of that suit. This suo motu revision petition should be registered and numbered in, this Court and the patties summoned for a sate to be fixed by the office. This case is to be kept pending till the decision of the cane of Muhammad Jan.

4. In the context of the preliminary objection, following from the judgment of the learned District Judge remanding the case, reads :-

It is, no doubt, true that the plaintiff-appellant has not pre-empted the transaction embodied in Mutation No. 2440 sanctioned on 23-12-1907 but the fact remains that one Abdul Ghani has pre -empted this (that) sale and his suit has been stayed under section 29 of the N: W. F. P. Pre-emption Act. The file of that case his been requisitioned and it transpires therefrom that it is still pending and has not yet been decided. If Abdul Ghani succeeds in that suit the defendant-respondent will be deprived of the qualification of so sharership. Ire this state of matters the defendant-respondent cannot claim to be co- sharer as the sale in his favour is subject to pre-emption suit which is yet to be decided. In the circumstances I am constrained to accept this appeal, set aside the judgment and decree of the learned Civil Judge and remand the case to him under Order X LI, rule 23-A, C. P. C. with the direction that he should first decide Suit No. 2/1 of 1968, entitled Abdul Ghani v. Fazal Ahmad, and then decide this suit in the light of that decision. Parties have been directed to appear before the Civil Judge, Mansehra on 12-4-1971."

5. Syed Rifaqat Ali Shah, learned counsel for the respondent maintains that the order of remand being appealable under Order XLIII, rule 1(u), C.P.C. which was not appealed from, therefore, it became final and the sue motu revision was thus incompetent.

6. The objection is to be examined besides other ground to be instantly discussed, section 13 of the Court Fees Act is relevant to the point which reads :-

13. If an appeal or plaint which has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure, is ordered to be received, or if a suit is remanded in appeal, on any of the grounds mentioned in section 351 of the same Code for a second decision by the lower Court, the Appellate Court shall grant to the appellant a certificate authorising him to receive back from the Collector the fall amount of The paid on the memorandum of appeal

This view finds support from Laila v. Mohange and others (A I R 1931 All. 623), which reads as follows :-

"Ordinarily the High Court would not interfere if another convenient remedy is open to at applicant, particularly when that remedy is by way of appeal to a lower Court. But it cannot be laid down as a general proposition that tie High Court has no power of interference at all or should not interfere here there is another reedy by way of a suit open to the applicant. Each case roust be considered on fits own merits and if the Court leas acted without jurisdiction or with material irregularity and the applicant has been seriously prejudiced and interference is called for in the interest of justice, there is no reason why High Court should drive the applicant to a more circuitous remedy by way of a separate suit."

It was held in Falah-ul-Momineen Trust v. Y. P. Abdullah (P L D 1970 Kar. 179) : -

The Legislature; has in the Civil Procedure Code provided for all possible eventualities and to such matters which were not foreseen at that time, n provision like section 151, C. P. C. was enacted to empower the Courts to meet such ail unforeseen eventuality. Apart from section 15, C. P. -C. the Court bas also inherent power to take all steps to execute its own mandates and orders as this power flows from the jurisdiction itself. The support for this view, can be hail from the following passage on page 136, Corpus Juris Secundum, Vol, 21:

While a Court may be expressly granted the; incidental powers necessary to effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every regularly constituted Court hag power to do all things that are reasonably necessary for the administration of justice within the cope of jurisdiction, and for the enforcement of its judgments and mandates.' This power has been judicially recognised and stated as an implied power following from the jurisdiction itself in the Interpretation of Statutes by Maxwell, 10^th Edn., on p. 136 :-

Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as ate essentially necessary to its execution. Sui jurisdiction data est, ea quoque concessa essee videnture sine quibus jurisdiction explicari non potult. Thus, an Act. which empowered justices to take in oath as special constables, and gave them jurisdiction to inquire into as offence, impliedly empowered them to apprehend the peons who unlawfully failed to attend before then for those purposes. Otherwise the jurisdiction could not be effectually exercised. Thus it cannot be doubted that the Court has inherent power to take such steps to have its process executed and in this context even though there is no specific direction either in rules 35, 95 and 98 of Order XXI, C. P. C. or rule 255 of the Sind Civil Court Rules for police aid for getting the writ of ejectment executed, yet the Court can provide for such assistance."

7. For the foregoing reasons, this m vision petition is accepted with the direction that the case of Muhammad Jan v. Fazal Ahmad shall decided before the case of Abdul Ghani v. Fazal Ahmad.

S. Q. Petition accepted.

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