1993 PLP 2318 (SCMR)

‑‑‑‑S. 6(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for pre emption ‑‑‑Pre‑emption did not mention either "Zaroorat" for pre‑emption or avoidance of "Zarar" in his plaint‑‑‑Dismissal of suit‑‑‑Validity‑‑‑Suit for pre‑emption would not be maintainable in default of expressing "Zaroorat" or; avoidance of "Zarar" leading to pre‑emption‑‑‑Leave to appeal was refused in circumstances. (b) Punjab Pre‑emption Act (IX of 1991)‑‑‑ ‑‑‑‑S. 6(2)‑‑‑Suit for pre‑emption ‑‑‑Omission to mention "Zaroorat" or avoidance of `Zarar' in plaint ‑‑‑Effect‑‑‑Zaroorat or avoidance of Zarar, being question of fact, unless same is expressly pleaded, could neither be implied nor assumed to exist by merely asserting pre‑emption. Muhammad Munir Piracha, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondent. . Date of hearing: 18th May, 1992. MUHAMMAD AFZAL LONE, J: ‑‑This is a petition by a plaintiff in a pre‑emption suit, seeking leave to appeal from the High Court's order dated 29‑2‑1992, dismissing his revision. The suit was filed on 26‑7‑1989 on the ground of being co‑sharer and owner of contiguous property. It was dismissed by the trial Court for the reason that section 15 of the Punjab Pre‑emption Act, 1913, under which the petitioner claims superior right of pre‑emption, being violative of Islamic Injunctions had been declared null and void. The Additional District Judge agreed with this view and maintained that no suit for enforcement of right of pre‑emption, in pursuance of section 15 of the Act, could be filed after 31‑7‑1986 (see Said Kamal's case, PLD 1986 SC 360). Before the High Court at the revisional stage it was contended that as the plaint satisfied the requirements of the Punjab Pre‑emption Ordinance, 1990 and Punjab Pre emption Act, 1991, it could proceed under the new dispensation. The High Court repelled this contention and maintained:‑‑ "Contiguity, without dispute, is a ground for pre‑emption under the new law. Section 6 of the "Ordinance" and the "Act" enumerated qualifications and classes of pre‑emptors. However, sub section (2),of the Ordinance and the Act which contained a non obstante clause provided that `right of pre‑emption shall be exercisable only in case of `Zaroorat' or to avoid `Zarar'. Obviously, without `Zaroorat' or avoidance of `Zarar' pre‑emption was not permissible. It was essential part of pre‑emption under the new law. Without it, it could not succeed. At least, from the imperative legislative language, it appeared so. Plaint in the pre‑emption suit did not catalogue either `Zaroorat' for pre‑emption or avoidance of `Zarar'. `Zaroorat' or avoidance of `Zarar' are question or fact, and, unless expressly pleaded, could neither be implied nor assumed to exist by merely asserting pre emption. Vendee is entitled to a clear notice of `Zaroorat' for pre emption or avoidance of `Zarar' leading to it. Absence of express pleading sprang a surprise on the opponent. Law of pleading prohibited it. Therefore, though the qualifications of co‑ownership in the part of the land‑in‑suit, and contiguity existed in the case under consideration as also the statement of Talabs, yet in default of expressing `Zaroorat' or avoidance of `Zarar' leading to pre‑emption, pre‑emption suit could not be resurrected for a trial under the new law."

2. In support of this petition, the only point urged by the learned counsel is that the condition, as to the exercise of right of pre‑emption only in case of `Zaroorat' or to avoid `Zarar' envisaged by subsection (2) of section 6 of the Pre‑emption Act, 1991, is not the qualification of pre‑emptor, but the absence thereof may be urged as a defence by a vendee. This contention has no merit and cannot be accepted without offending the language of section 6(2) ibid. The view taken by the High Court is correct and does not call for interference. This petition is, therefore, dismissed and the leave refused. AA./R‑221/S Leave refused.