2001 SCMR 533 (PLP)

TANVIR AHMED KHAN, J.

This appeal is directed against the judgment, dated 10-4-1996 of the Lahore High Court, Multan Bench, Multan whereby R.S.A. No.51 of 1979 filed by the respondent was accepted and the judgment/decree, dated 11-4-1979 of the trial Court was restored.

2. The facts briefly are that the land measuring 36 Kanals was sold to the appellant by Khuda Bakhsh, vendor, through registered sale-deed No.1508 attested on 19-5-1975 for a consideration of Rs.10,

000. The respondent, Mst. Bhiranwan filed a suit for possession through pre-emption claiming superior right, over the vendees on the ground of being collateral as well as co-sharer in the Khata. She also took exception to the inflated sale consideration.

3. The appellants contested the suit inter alia on the ground of non joinder of necessary parties. Out of pleadings of the parties issues were framed. The learned trial Judge decreed the suit vide his judgment and decree, dated 11-4-1979. An appeal was preferred by the appellants and the learned District, Judge, Dera Ghazi Khan, accepted the same and dismissed the suit of the respondent as bad for partial pre-emption. The plea taken up by the appellants before the District Judge was that the claim of pre-emption of the respondent was bad for non joinder of parties as one of the vendees/defendants, Bakhsha, was not impleaded in the suit. In support of this contention learned counsel appearing before the District Judge relied upon original sale-deed Exh.D.1 and the copy of the Jamabandi for the year 1962-63 (Exh.P.3); while the respondent/pre-emptor impleaded eight persons in the array of defendants. The respondent filed second appeal against the judgment of the learned District Judge in the Lahore High Court, Multan Bench, Multan, which was accepted through the impugned judgment, dated 10-4-1996 and the decree passed by the trial Court in her favour was restored.

4. Learned counsel appearing for the appellants has argued that in the original sale-deed Exh.D.l, which is a primary document, the names of nine vendees were mentioned but the respondent/pre-emptor had arrayed eight vendees and left the name of Bakhsha.

5. Learned counsel appearing for the respondent has pointed out that the respondent/pre-emptor secured a copy of the sale-deed Exh.P.1 from the Registry Office which was according to the register. P.W.1, Haji Muhammad, Registration Clerk, appeared in the witness-box and stated that in the Register Behi No. l Bakhsha was not entered as one of the purchasers while the names of other .eight vendees were mentioned therein and Exh.P.1 was the correct certified copy of the said entries. He has also pointed out that Khuda Bakhsh, the vendor, appeared as P.W.2 and stated that Bakhsha was not one of the vendees. He has further pointed out that Bakhsha never appeared in the witness-box either to controvert the same or establish h claim.

6. We have considered the contentions of the learned counsel for the parties and have gone through the documents on record. The original sale deed, the primary evidence, was in possession of the appellants/vendees. The respondent/pre-emptor could only lay hand on the certified copy of the same (Exh.P.l) which she secured from the office of the Registrar. In the said copy the names of eight vendees were mentioned. The respondent/pre-emptor could not have arrayed Bakhsha as a defendant as his name was not shown in the certified copy issued by the Registrar Office as vendee. Further Khuda Bakhsh (P.W.2), the vendor, had stated that he never sold the disputed land to Bakhsa. Even if the case of the petitioners is accepted that the disputed land was sold to nine vendees inclusive of Bakhsha, the respondent cannot be penalized in the circumstances for not impleading him in the array of defendants in the suit. The omission has been made in the number of vendees during the course of recording entries by the office of Registrar and the respondent cannot be held responsible for the same. It bas not come on record that any interpolation or intermeddling was done with the register or the respondent had got any hand in this alleged omission. In these circumstances it would be asking too much from the pre-emptor/respondent to incorporate the name of Bakhsha in the array of defendants when he was not shown as a vendee in the copy issued by the Registrar, office.

7. There is another important aspect which gives strength to the case of the respondent as it is an established principle of law that an act of the Court shall prejudice no man. Reliance in this respect is placed upon the case Mian Ijaz Iqbal and others v. Faisalabad Chamber of Commerce and another (PLD 1983 Lahore 1) wherein following observation has been made:- "Suffice it to say, that the maxim enshrined in actuscuriae neminem gravabit (an act of Court shall prejudice no man) is applicable to judicial or quasi-judicial tribunals including the organizations which are required to perform any statutory duty. Reference may be made to Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others (PLD 1975 Lahore 7)."

8. All the public authorities are enjoined by law to perform their duties in an honest manner. If some omission or irregularity is committed, the ordinary man should not be made to suffer for the same provided he has got no hand therein. Reference is, made to Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584) wherein it was held 'as under:-- "It is to be noticed that all public authorities including the judicial functionaries while doing an act enjoined by law or merely empowered to do it must not do it improperly. An action may lie against a public authority for misfeasance or non-feasance but for the sake of safe administration of justice and good sense no action lies for the breach of duty when the duty to perform is judicial or quasi-judicial. There may be a variety of reasons for omission or failure in performing such duty or exercising power with reasonable dispatch such as delaying tactics of the parties to the action multiplicity of pending cases in the Court of intricacies of questions of law and facts raised before it. As stated at page 75 in Broom's Legal Maxim: 'Cases, however; have occurred, in which injury was caused by the act of legal tribunal, as by the laches or mistake of its officer; and where, notwithstanding the maxim as to actus curaie, the injured party was without redress. Presumably the need to mitigate the rigor of the hardship inflicted on a party in the course of administration of justice, by an act of the Court, led to the emergence of the norms that 'the act of the Court shall prejudice no man. Reference in this regard is also made to cases of Sh. Mehraj Din v. Ghulam Muhammad (PLD 1965 Lahore 374), Muhammad Ashraf and 5 others v. Alam Din and 7 others (1989 CLC 211) and Jamshaid Ali and 2 others v. Ghulam Hassan (1995 CLC 957).

9. Resultantly, for what has been stated above the appeal having no force is dismissed with costs. Q.M.H./M.A.K./L-13/S Appeal dismissed.