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Writ Petition No. 451 of 1981, decided on 5th March, 1985.

---0. VII, r.10--Suit for pre-emption--Return of plaint--Jurisdictiorn of Collector--Suit for pre-emption filed on mixed grounds of being co-sharers and of tenancy by different plaintiffs--Suit sent to Collector to adjudicate upon ground of tenancy--Later on ground of tenancy not pressed by tenant and suit dismissed to extent of tenancy--Consequently case was sent to District Judge for trial on remaining grounds-Contention that Collector having lacked jurisdiction, instead of transferring case to District Judge, plaint should have been returned to plaintiffs--Contention, held, not tenable--Collector being competent to try suit for pre-emption on ground of tenancy did not lack jurisdiction in circumstances.--(Jurisdiction].

Ijaz Baig Mirza for Petitioner.

M. Hameed Azhar Malik for Respondents Nos. 4 to 6.

Date of hearing: 5th March, 1985.

The facts relevant for the disposal of this constitution petition are that a suit for possession through pre-emption was filed by respondents plaintiffs Nos. 4 to 6 and one Khuda Bakhsh sun of Muhammad Sharif in the Court of Civil Judge 1st Class Kot Adu on 11-1-1975. Respondents plaintiffs Nos. 4 to 6 claimed superior right of pre-emption on the ground that they were co-sharers in the Khata whereas Khuda Eakhsh asserted that he was the tenant of the land ill question and as such held the superior right of pre-emption. During the pendency of the suit Ordinance XX of 1976 was enforced and under the said Ordinance the claim of pre-emption on the ground of tenancy was to be tried by the Collector. As in the suit in question one of the grounds taken was of tenancy the file was sent/transferred to the Collector for trial of the said plea. Before the learned Collector respondents-plaintiffs filed an application for transfer of the suit to the Civil Court but later on withdrew the said application saying that the Collector had the jurisdiction to proceed with the matter. This application dated 4-10-1978 was rejected to view of the aforesaid statement on 11-1-1979. Another application seeking the same relief was filed by the respondents-plaintiffs on 12-3-1980 but the same was dismissed by the learned Collector on 20-3-1980. On 30-3-1980 Khuda Bakhsh co-pre-emptor submitted an application abandoning his plea of tenancy as well as the relief claimed in the suit. The same day the learned Collector recorded the statements of Khuda Bakhsh and the other plaintiffs i.e. respondents Nos. 4 to 6. In view of these statements the name of Khuda Bakhsh was ordered to be deleted and the suit to his extent was dismissed as withdrawn. Respondents-plaintiffs Nos. 4 to 6 then filed an appeal against the order dated 20-3-1980 of the learned Collector whereby the request of transfer of the suit was refused. The learned Additional Commissioner vide order dated 10-1-1981 directed that the file be sent to the learned District Judge for trial of the suit on the remaining pleas. This order was then challenged in the present constitution petition on the ground that instead of sending the file to the learned District Judge the plaint should have been returned to the plantiffs. It is urged that a Court which lacks jurisdiction to entertain proceedings cannot transfer the same to a competent Court of jurisdiction and under Order Vll, rule 10, C.P.C. the plaint is to be returned to the plaintiff for presentation to n competent Court. This plea cannot be accepted in the circumstances of this case. The Court of the Collector where the plaint stood transferred for trial of the ground of tenancy cannot be held to have lacked the jurisdiction. Admittcldy it had the jurisdiction to try the ground of tenancy and once that ground was not pressed the trial is to proceed with reference to the other grounds taken in the plaint. In this situation the learned Collector after dismissing the suit as regards Khuda Bakhsh plaintiff should have sent the file to the learned District Judge for trial in accordance with law. The error was however rectified by the learned Additional Commissioner as through the impugned order he directed that the file be sent to the learned District Judge for trial of the suit on the remaining grounds. In this view of the matter it will be seen that justice has been done in the case and the objection taken in this writ petition is neither available nor can be allowed to prevail in equitable jurisdiction. This petition is, therefore, dismissed with costs. The learned trial Court is directed to dispose of the suit within three months. H.B.T. Appeal dismissed.