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Civil Petition for Special Leave to Appeal Nos. 726 and 727 of 1985, decided on 19th October, 1986.
(From the judgment of the Lahore High Court, Lahore, dated 6‑5‑1985 passed in Criminal Revision Nos. 923 and 924 of 1985 respectively)
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), Ss. 107, 149, O.I, R.9. & O. VII, R. 11(c)‑‑Punjab Pre‑emption Act (I of 1913), S. 21‑‑Suit for pre‑emption‑‑Rejection of plaint on ground of deficiency in court‑fee‑ Non‑joinder of parties in appeal ‑Competency of appeal‑‑Pre‑emption suit‑‑Plaint rejected due to deficiency in court‑fee‑‑Case remanded to 'Trial Court for further proceedings on appeal‑‑Defendants' revision petitions against remand orders dismissed by High Court‑ Contention that plaintiff ‑pre‑emptors in one appeal had impleaded other pre‑emptors in their appeal as respondents but pre‑emptors in other appeal did not implead their rival pre‑emptors as party in their appeal and thus one appeal was rendered incompetent due to non‑joinder and for that reason rejection of plaint by Trial Court in incompetent appeal would become final in favour of petitioners‑‑Held, since rival plaintiff s‑pre-emptors had not sought any relief against each other, it was inconsequential whether one set of pre‑emptors impleaded other as respondent or not‑‑Concerned pre‑emptors had not raised any objection before Appellate Court regarding their having been omitted as party in appeal filed by rival pre‑emptors and no prejudice having been caused to petitioners, leave to appeal refused.
Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S C 289 ref.
Suleman v. Partap and others 93 I C 1926 and Gurmukh Singh v. Hari Chand and others No. 8 PR 1904 distinguished.
Raja Mahmood Akhtar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab for Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 19th October, 1986.
Leave to appeal has been sought from judgment, dated 6‑5‑1985 of the Lahore High Court; whereby two Civil Revisions filed by the petitioners (vendees) defendants, arising out of two pre‑emption suits, were dismissed.
The respondent‑sides in these two petitions filed two separate pre‑emption suits against the petitioners. They were consolidated. On an objection raised by the petitioners regarding deficiency of court‑fee ' both the plaints were rejected by the trial Court under Order VII, Rule 11, C . P. C . Both the pre‑emptors filed appeals which were allowed and the cases were remanded to the learned trial Court for further proceedings. The petitioners‑vendee‑defendants filed two Civil Revision Petitions in the High Court. The same having dismissed by the High Court by placing reliance on Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 SC 289 the petitioners have new sought leave to appeal.
Learned counsel has urged only one point in support of the petitions; namely, that although the plaintiff ‑pre‑emptors in one appeal impleaded the other pre‑emptors in their appeal as respondents, the pre‑emptors in the other appeal did not implead their rival pre‑emptors as party in their appeal. Therefore, one of the appeals thus having been rendered incompetent due to non‑joinder the other appeal had to be dismissed on the principle of res judicata. The argument being that the rejection of the plaint by the trial Court in the incompetent appeal would become final in favour of the petitioners. Learned counsel has relied on two cases: Suleman v. Partap and others 93 IC 1926 and Gurmukh Singh v. Hari Chand and others (No. 8 Punjab Record 1904).
Both the cases cited at the Bar are clearly distinguishable. We need not examine them. In this case the learned District Judge when dealing with the question raised, observed that in appeals the rival plaintiff pre‑emptors had not sought any relief against each other. They were directed only against the petitioner‑vendees. Therefore it was inconsequential whether one set of pre‑emptors impleaded the other as respondents or not. Be that as it may, the fact remains that both the pre‑emptor‑sides were arraigned before the learned first appellate Court either as appellants and/or as respondents. The technical omission by one of them not to implead the other could, in case of a real need, be overcome by the learned appellate Court by passing a formal order of adding a party which was already before it in the connected appeal. It needs also to be noticed that concerned pre‑emptors did not raise any objection before the learned appellate Court regarding their having been omitted as party in the appeal filed by the rival pre‑emptors.
Keeping in view the above aspects we feel that in the circumstances of this case no prejudice having been caused to the petitioners, the technical point raised by their learned counsel does not justify grant of leave to appeal by this Court; the same, therefore, is refused in both the petitions.
M.I. Leave refused
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