P L D 1989 Supreme Court 278 (PLP)

MUHAMMAD AFZAL ZULLAH, J-- leave to appeal has been for pre‑emption decreed in respondent s favour against the dismissal by the high court, of petitioner s regular first appeal. Learned counsel was unable to press an further point dealt with and disposed of by the High Court including those relating to the bar of limitation and divisibility of sale and rightly so because there is no substance on them. He has further contended that this case would also need examination alongwith the cases referred in 'Mir Ahmad v. Ataullah and others' 1985 S C M R 1851, as there is likelihood of the applicability of rule of 'Sinker', in Punjab being reversed in so far as the vendee /defendant is concerned. The question of sinker as is involved in the said case is primarily relatable to the judgment in the case of 'Fazal Ellahi v. Dewan Ali (deceased) (represented by Legal Heirs) and others' (1984 S C M R 1404). The head note of that report of the said judgment indicated as if the doctrine of sinker was not applicable in the Punjab. Although in Para. 8 of the said judgment there is no direct ruling to this effect but an inference, as Indicated in the head‑note, could be drawn. This could have led to supposition that the previously held view to the contrary was overruled by‑the Supreme Court in the said case of Fazal Elahi. Not only this a review application was also filed No.16‑R of 1984 in C.P.‑505‑R of 1983. Another party in the same case had filed a separate Civil Petition for leave to appeal No‑.507‑R of 1983. The Civil Review Petition No.16‑R of 1984 and Civil Petition No.507‑R of 1983 were ordered to be heard together. The ‑learned counsel who was appearing for Mir Ahmed in the case reported in (1985 S C M R 1851) made a submission during the arguments that the 'rule of 'sinker' remained applicable in the Punjab and that it had never been upset by the Supreme Court. On the other hand his argument was that it had throughout been affirmed. This argument with reference to the decision in the case of Fazal Elahi and the impression created in the head‑note thereof as reported in 1984 S C M R 1404, was noted as follows:‑ "

10. The learned counsel for Mir Ahmad has however submitted elaborate argument regarding principles underlying the question of "sinker" in so far as it applies to vendees. He has pointed out, with respect, that the decision of this Court in Civil Petition No.505/R of 1983 (Fazal Elahi v. Diwan Ali (deceased) represented by his L.Rs. Mst. Ghulam Bai, etc.) decided on 6th February, 1984 in so far as it assumes that the principle of sinker vis‑a‑vis vendees is not applicable in Punjab might need review for which a separate Civil Review Petition No.16‑R of 1984 in Civil Petition No.505‑R of 1983' has already been filed. He has in this behalf relied upon some cases arising from Lahore Jurisdiction. We may add that Mehr Allah Ditta and another v. Muhammad Ali and another P L D 1972 S C 59 and Muhammad Siddique and another v. Syed Zawwar Hussain Abidi and 9 others P L D 1976 S C 572, might also be relevant for consideration in this behalf." After noticing the argument of the learned counsel for Mir Ahmed the pendency of the Review Petition No.16‑R of 1984 and Civil Petition No.507‑11 of 1983 referred to above, was noticed as follows‑.‑ "

11. There is yet another matter which is pending consideration namely Muhammad lqbal v. Fazal Elahi and others, Civil Petition No. 507‑R of 1983. It has been filed by a party opposite to the petitioner in Civil Review Petition No.16‑R of 1984 in Civil Petition No.505‑11 of 1983. It has been ordered by the Court that the said petition namely 507‑R of 1983 and the Civil Review Petition NO‑16‑R of 1984 should be heard together. They are still pending." It was in the above background that the three matters which were then being, heard (Civil Appeals No.10, 20 of 1983 and Civil Petition for Leave to Appeal No.38‑R of 1984) were ordered to be beard with Review Petition No.16‑R of 1984 and Civil Petition No.507‑R of 1983 as follows:‑ "

12. After careful consideration of all the submissions made orally ‑as also in writing we deem it proper to direct that these three matters be fixed for further hearing alongwith Civil Review Petition No. 16‑R of 1984 and Civil Petition No.507‑R of 1983. The counsel in those two matters incidentally are also the counsel in these three matters, therefore, it should not take long for the office to fix all these matters for hearing within a short time. In order to avoid any technical difficulty notice to respondents in Civil Petition No.507‑R of 1983 shall also be issued for a short date. " It is in the foregoing context and the background in which the learned counsel has raised the argument regarding 'sinker' in the present case. Obviously, the reference to the larger Bench, it would seem, was for the correction of error if any in the order passed in the case of Fazal Elahi on the assumption; that as the doctrine of 'sinker' applies in Punjab in accordance with precedent law laid down by the superior Courts, therefore, the inference in the head‑note of/or the assumption made in the case of Fazal Elahi needed to be rectified. And it is in this context that the possibility of the reconsideration of a previously laid rule was visualised in Para 13 of the order in the case of Mir Ahmed. It is necessary here to make reference to two very well considered judgments of this Court‑‑ First by five Honourable Judges and the second by four Honourable Judges. They are 'Mehr Allah Ditta and another v. Muhammad Ali and another' P L D M2 S.C. 95 and 'Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others' P L D 1976 S C

572. In the first case it was recognized and reiterated that the law of pre‑emption in the Punjab was not based on Muslim Law but it was based on custom and was regulated by statute. And further that it had nothing to do with the Muslim Law of pre‑emption. This distinction was made in connection with the controversy whether the rule of 'sinker' was applicable both to the first purchaser of the land (vendee) who claims to have equal or superior right of pre‑emption and the pre‑emptor/plaintiff who claims superior right of pre‑emption‑ both joining strangers not having any such right. While regarding a person claiming a right of pre‑emption in the position of Vendee/ purchaser it was assumed, he could not shed off such a person so joined in the purchase during the trial of a suit when opposing the same as defendant, it was held that the, plaintiff could do so by giving up the insistence that his co‑plaintiff who had no such right shall also share the fruit of possession through pre‑emption if the pre‑emptor / plain tiff Is suit was decreed. The distinction made was not regarding the controversy whether rule of 'sinker' is applied only to the vendee and not to the plaintiff but on a procedural aspect of the same rule; namely, that during the trial before the Court a vendee who suffered from such a disability could not by his choice or otherwise by an order of the Court shed off the disability, the plaintiff could do so by above‑mentioned method. This distinction, it appears was ' for the first time very ably brought out in the case of 'Sharaf and Makhan v. Pir Bakhsh and Khoda Bakhshl (1893 P.R. Civil Judgments No. 83). It was held therein that a purchaser (Vendee) claiming himself to have a right of pre‑emption joining a stranger with him in the purchase would be in a worst position because he having made the purchase in violation of the Rules regulating pre‑emption by joining a person having no right of pre‑emption "his act is incapable of being undone" and thus he despite his desire for procedural rectification during the trial, it is further observed, would not be able to shed off the defect. On the other hand it was held that in the second case where a plaintiff/pre emptor joins with him a stranger as co‑plaintiff the error is in the form of the claim made in the Court and "can be remedied without infringing the right of any person". While approving a similar view held in an Oudh case this Court further observed in the case of Mehr Allah Ditta that while in the case of a Vendee (associating with himself a stranger) the act of associating a stranger as a party to the sale was an act which was "incapable of being undone, an error in the array of parties by including stranger as a plaintiff to the suit could be remedied under an order of the Court". These rulings and principles having been further discussed with reference to considerable case‑law, it was finally held by this Court in the said case of Mehr Allah Ditta with regard to the efficacy of the case of Sharaf and another as follows:‑ "Apart from this, the decision in the case of Sharaf and another v. Pir Bakhsh and another has held the field for the last 78 years and has been followed without dissent by the Courts in Punjab. On the principle of 'stare decisis' also it is not desirable to change this view unless it is so unreasonable that it cannot be followed under any circumstances. In my opinion, the reasoning given in Sharaf's case is based on cogent grounds and there is no reason to depart from it." It may also be mentioned here that on the question of stare decisis the learned Judges were of the view that if a long‑standing precedent law As followed by the re‑enactment of the same law and the statute of re‑enactment does not change the law, the precedent law would be deemed to have been accepted by the legislature also. This would suffice in so far as the application of the principle of 'sinker' to the Vendee in the Punjab is concerned. However, lest this discussion might led to some misunderstanding regarding the possibility of removal of defect vis‑a‑vis 'sinker' by a plaintiff‑pre emptor in areas other than the Punjab, it is necessary to make reference to another ruling of this Court, namely, 'Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others' P L D 1976 S C

572. The rule laid down in the case of Mehr Allah Ditta for Punjab in so far as the position of a plaintiff /pre‑emptor vis‑a‑vis the possibility of shedding off his disability on account of sinker' is concerned, was distinguished from similar situation arising in N.W.F.P by majority judgments‑‑ the distinction was upheld on the basis of the statutory law in the N.W.F.P. In the light of the foregoing discussion the argument of the learned counsel that the rule of sinker was not applicable in the Punjab to a vendee is repelled. This petition therefore, fails and leave to appeal is refused. M.B.A /M‑774/S Leave refused.