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‑‑‑S. 28‑A‑‑Pre‑emption suit‑‑Stay of‑‑Provisions of S. 28‑A are exhaustive of the grounds on which proceedings in a pre‑emption suit could be stayed‑‑When law has provided grounds on the fulfilment of which a suit can be stayed, other grounds were by implication excluded and Court could not go beyond the terms of S. 28‑A and could not stay the proceedings in a pre‑emption suit on any ground other than the grounds expressly mentioned in S. 28‑A.

Syed Sardar Shah Bokhari for Petitioner. Mirza Manzoor Ahmad for Respondent No.2.

Date of hearing: 22nd June, 1987.

The petitioner filed a suit for possession through pre‑emption of house No.5 situated in Jalalpur Pirwala, Tehsil Shujabad, District Multan, against respondent No.2 who purchased it from its previous owner Khawaja Maqsood Hussain. The right of pre‑emption was claimed by the petitioner on the ground that he was owner of adjacent house No.4 which he purchased from its transferee from the Settlement Department. During the pendency of the suit one Mst. Hajiran, filed a suit for specific performance of agreement of sale of house No.4 against Muhammad Ismail its previous owner from whom the petitioner claims to have purchased this house and it is the allegation of the petitioner that this suit has been got filed by respondent No.2 which is collusive in order to defeat the petitioner suit against respondent No.2 for pre‑emption. It is alleged that this Mst. Hajiran is daughter- in‑law of said Mst. Sharm Khatoon. Anyhow, the said suit of Mst. Hajiran for Specific Performance was decreed on 1‑10‑1980. It is alleged that this suit for Specific Performance was conceded through compromise on behalf of Ismail his alleged attorney Niaz Muhammad who was allegedly brother of Hajiran's husband. On coming to know this allegedly fraudulent decree Muhammad Ismail submitted an application under section 12(2), C.P.C. before the trial Court alleging that he never appointed Niaz Ahmad as his attorney and .that the decree obtained for Specific Performance of agreement of sale of the house was fraudulent and fictitious because the house had already been sold away to present petitioner. Subsequently said Muhammad Ismail on 18‑10‑1983 withdrew the said application stating that he had received the price from Niaz Ahn)ad Mukhtar‑e‑Khas. Feeling aggrieved, the present petitioner himself moved an application under section 12(2), C.P.C. on 24‑10‑1983 against the said decree which is still pending before the trial Court.

2. The superiority in the right of pre‑emption was claimed by the petitioner on the basis of ownership of the said house No.4 in respect of which Mst. Hajiran got a decree, . therefore, it was .likely to effect the suit of the petitioner which he filed against respondent No.2 for pre‑empting the sale of house No.5 being adjacent to his said house. Petitioner moved an application before the trial Court in his suit for pre‑emption that the same may be stayed till the disposal of his application under section 12(2), C.P.C. moved in the suit in which Mst. Hajiran got a decree for Specific Performance because decision of that application would one way or the other effect the proceedings in the pre‑emption suit because the very ownership of the petitioner in house No.4 on the basis of which he was claiming superior right of pre‑emption at present in view of the decree for Specific Performance of agreement of sale of the said house in favour of Mst. Hajiran Bibi would adversely effect his suit for pre‑emption. The learned trial Court vide its order dated 5‑2‑1985, stayed the proceedings in the pre‑emption suit sine die. The suit for pre‑emption is still at the stage of recording of evidence of the petitioner in rebuttal. Respondent No.2 feeling aggrieved, by the said stay of pre‑emption suit sine die filed revision petition before the learned Additional District Judge, Multan who vide order dated 18‑9‑1985 accepted the same and set aside the impugned order dated 5‑2‑1985. This writ petition is directed against the said order of learned Additional District Judge, Multan which was admitted to consider the question as to whether the order passed by trial Court for stay of the suit of the petitioner for pre‑emption in his discretion was reviseable or not.

3. Learned counsel for the petitioner contends that the learned trial Court had unrestricted discretion and power to stay the suit which could not have been interfered with ih exercise of revisional jurisdiction which are only to be resorted to if there was any jurisdictional defect in the impugned order or material irregularity amounting to illegality had been committed which according to the learned couhsel was not committed by the trial Court. On the other hand the learned counsel for the contesting respondent supported the reasoning given by the Additional District Judge, in his impugned order and submitted that the trial Court while staying the suit had exercised jurisdiction not vested in it under the law as section 28(A) of the Pre‑emption Act is exhaustive of the grounds on which the proceedings in a pre‑emption' suit could be stayed and once the law has provided the grounds on the fulfilment of which a suit such like pre‑emption suit can be stayed the other grounds are by implication A excluded and, therefore, the learned trial Court could not go beyond the terms of section 28(A) of the Pre‑emption Act, and could not stay the proceedings in petitioner's suit for pre‑emption on any ground other than the ground expressly mentioned in section 28(A) of the Pre‑emption Act.

4. I have considered the arguments of both the learned counsel. The argument of the learned counsel for the contesting respondent has substance. Even otherwise the apprehension of the contesting respondent that if the suit is stayed in this manner then the stay may continue for indefinite period because there will be no limit of time within which the proceedings initiated by the petitioner in the other suit for getting the decree for Specific Performance of agreement of sale annulled shall come to an end because after the order of the trial Court, the matter might be taken upto the level of Supreme Court and in such manner the order of the trial Court was not only without jurisdiction but also passed arbitrarily and amounts to failure to exercise the jurisdiction to try the suit are correct. In this view of the matter, the impugned order passed by learned Additional District Judge, Multan, calls for no interference which has not been shown by the learned counsel for the petitioner, as having been passed without lawful authority. The writ petition being without substance, is hereby dismissed without any order as to costs.

M.B.A./G‑88/L Petition dismissed.

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