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Civil Appeal No. 14 of 1980, decided on 2nd October, 1983.

(From the judgment, dated 13th June, 1974 of the Lahore High Court passed in Regular Second Appeal No. 234 of 1962).

----Art. 185 (3)‑Pre‑emption‑Leave to appeal granted to consider whether death of vendor in a pre‑emption appeal could result in its abatement.‑[Pre‑emption Abatement].

----S. 21‑Vendor not necessary party in pre‑emption suit‑Failure to implead vendor as necessary party, held, not fatal to suit.

Hira Lal v. Ramjas I L R 6 All. 57 ; Shiv Charan Singh v. The Secretary of State for India and another 1888 P R 80 ; Harbans Tiwari v. Tota Sahu and others I L R 32 All. 14 and Nasir v. Muhammad v. Fazal P L D 1965 Lah. 434 ref.

---Art. 185(3)‑Point not specifically raised before High Court -Permitted to be raised at appeal stage by Supreme Court where High Court had not applied law correctly to case.

Qazi Khalid Iqbal, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record (absent) for Appellant.

Ch. Muhammad Abdul Wahid, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No. 1.

Date of hearing : 2nd October, 1983.

This appeal by leave of the Court is directed against the order, dated 13‑6‑974 of a learned Single Judge of the Lahore High Court whereby the appellant's Regular Second Appeal No. 234 of 1962 was consigned to the record as having abated on his failure to have brought on record the legal representatives of Mst. Sharfan, the vendor in the case.

2. The second appeal before the High Court had arisen out of a suit instituted by M. Hussain, respondent No. 1, to pre‑empt the sale of a house made by Mst. Sharfan in favour of the appellant. On 13‑6‑1974 when that appeal came up for hearing, it was shown, by production of a copy of entry in the register of death, that Mst. Sharfan had died on 20‑3‑1972 and as no application had been made to implead her legal representatives, the impugn ed order was passed. The appellant then moved a petition before this Court whereupon leave was granted to consider whether the death of the vendor in a pre‑emption appeal could result in its abatement.

3. Learned counsel for the appellant contends that under Order XXII, rule 4, C. P. C. as then in force read with Article 177 of the Limitation Act, the second appeal could abate only if no application for impleading the legal representatives of the deceased had been moved within 90 days from the date of the death but that as before the expiry of this period the relevant law had been amended by the Law Reforms Ordinance (XII of 1972), effective from 14‑4‑1972, the appeal under the new provision would not abate and even if no application had been made within time for implead ment of the legal representatives, the Court could proceed with the appeal and any order made or judgment pronounced, notwithstanding the death of the deceased vendor, would have the same force and effect as if it had been pronounced before the death took place.

4. The death having taken place on 20‑3‑1972, there is substance in the assertion that in view of the alt: red provision of the law brought about by ordinance XII of 1972 with effect from 14‑4‑1972, which was before the abatement had taken place, the appeal could no longer abate and its disposal would be governed by the new provision of Order XXII, rule 4 C. P. C. whereunder the Court could proceed to decide the appeal. In an case there is a chain of long established authority that the vendor is not necessary party in a pre‑emption suit in the sense that a failure to implead him would be fatal to the suit. See Hira Lal v. Ramjas (I L R 6 All. 57), Shim Charan Singh v. The Secretary of State for India and another (1888 P R 80), Harbans Ti wars v. Tota Sahu and others (I L R 32 All. 14) and Nasir Muhammad v. Fatal (P L D 1965 Lah. 434). The judgment of the High Court is, therefore, not substainable in law.

5. Ch. Muhammad Abdul Wahid, appearing for the other side, did not contest this legal position but contended that the points not having specifically raised before the High Court the same should not be permitted' to be raised now. The contention has no force because the High Court was expected to apply the law correctly to the case.

6. We accordingly accept this appeal, set aside the impugned judgment and remand the matter to the High Court for disposal of the second appeal on merits. There shall be no order as to costs.

M. Z. M.

Appeal accepted.

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