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Civil Petition No. 1186 of 1980, decided on 2nd September, 1985.
(Against the judgment and order dated 14‑6‑1980 of the Lahore High Court, Lahore, in Civil Revision No. 363 of 1975).
‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O. IX, r. 9‑ Restoration of suit‑‑Sufficient cause shown for non‑appearance‑‑Two persons filing suit for pre‑emption‑‑Suit of one abated and that of petitioner decreed‑‑After decree having attained finality, abated suit restored on ground that sufficient cause was shown for non appearance‑‑Contention raised that petitioner's decree being uncondi tional, revival of suit of other person was not only unjustified on merits but also an exercise in futility for it could not affect decree of petitioner in view of dismissal of his other revision petition‑‑Leave granted to examine case with regard to implication of restoration of suit against petitioners decree.
Ch. Khalilur Rehman, Senior Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 2nd September, 1985.
‑The petitioner, a successful pre‑emptor, seeks leave to appeal against the judgment of the Lahore High Court, dated 14‑6‑1980 whereby a revision petition filed by the rival pre‑emptors was allowed and "the orders under revision" were set aside and the rival pre‑emptor's suit was restored and the pre‑emption decree passed in petitioner's favour was ordered not to extend to rival pre‑emptor s rights.
2. Against the sale of 337 Kanals 3 Marlas two pre‑emption suits were filed; one by the petitioner and the other by Jan Muhammad. The suits were consolidated and 18th of December, 1971 was the date fixed for examining whether the suit instituted by Jan Muhammad, the rival pre‑emptor had not abated. It was the date given for recording of evidence. The counsel representing Jan Muhammad appeared and made a statement that he had no instructions. On this, the application for setting aside the abatement was dismissed and his suit was also dismissed. The petitioner's suit was decreed on 22‑1‑1972.
3. On 12th of January, 1972 an application was filed under Order IX, rule 9, C. P. C. explaining the absence on 18‑12‑1971 by the heirs of Jan Muhammad and seeking restoration of the proceedings. On 10‑2‑1972 an application for setting aside the ex parte decree under Order IX, rule 13, C. P. C. was filed in the petitioner's case. Both the applications were dismissed by the trial Court and the first appellate Court. The High Court also dismissed the revision against the dismissal of the application under Order IX, rule 13, C. P. C. so far as petitioner's suit was concerned. The other revision, however, was allowed and the suit originally instituted by Jan Muhammad was restored as according to the High Court sufficient cause was shown for non‑appearance on 18‑12‑1971 and further it was not a date fixed in the suit but only in the application for setting aside the abatement.
4. The petitioner's grievance now is that he holds a decree in respect of the land sold. It is unconditional. The revival of the suit of other Jan Muhammad is not only unjustified on merits but also it is an exercise in futility for it cannot in view of dismissal of his other revision petition affect the decree held by him.
5. We consider that this case requires further examination with regard to the implication of the restoration of the suit of Jan Muhammad against the decree held by the petitioner. Leave to appeal is, therefore, granted. Security in the sum of Rs. 2,500. Proceedings in the trial Court to continue in the suit of Jan Muhammad which has been restored under the impugned order of the high Court and it shall proceed to a decision. This appeal to be heard on the present record.
M.I. Leave granted.
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