P L D 1985 Lahore 489 (PLP)

Mahmud B,.khsh v. Hassan Bakhsh and others ? P R 1912 re/: Khawaja Mushtaq Ahmad for Petitioner. A suit filed by the respondent to pre-empt a sale made in favour of the petitioner through a registered deed, dated 30-5-1979, was contested by the petitioners on the ground, among others, that he was estopped from suing on account of his conduct. Learned trial Judge dismissed his suit with the conclusion that his presence, as bad even been admitted by him, at the time of the bargain constituted estoppel. However, in his appeal, a learned Additional District Judge reversed that finding to decree his suit for the reasons that mere presence of a prospective pre-emptor does not entail the consequence of estoppel because the trend of recent authorities appeared to be that there must be a positive offer made and declined to estop him from filing the suit subsequently. Vendees have now come up to this Court in revision.

2. Learned counsel has candidly stated at the very outset that he cannot canvass the proposition that mere presence of the pre-emptor at the time of the bargain regarding the sale in suit may entail the consequence of waiver or estoppel against him. He, however, pointed out that the respondent-plaintiff had appeared as his own witness on 14-2-1984 to admit that he, as also his son, was present at the time of the bargain but having realized the consequences likely to ensue therefrom, he appeared in the witness-box once again on 8-5-1984 to completely back out from the above admission. This subsequent statement, learned counsel contended, when viewed in the context of the present suit having been filed barely eight days before the expiry of limitation ; leads one to the conclusion that there was a conscious realization in the mind of the respondent that it the things were left as they were, then he may not ultimately succeed in his suit which, learned counsel further suggested, was filed by him only due to the impetus provided by another suit filed by Abdus Sattar and another against Muhammad Anwar, one of the petitioners, to pre-empt the sale which he had secured on 13-1-1979 to improve his status, originally that of a non-owner of the estate, while the other petitioner had not made such an improvement. This argument, apart from conjectural, is also only circuitus and I do not see how such a realization on the part of the respondent may advance the case of the petitioners because the basic proposition, even then, remains the same, namely, as to whether his mere presence can give rise to estoppel. Moreover, since originally both the vendee-petitioners were not owners of the estate and only one of them had improved his status by acquiring. the former sale to subsequently get the sale now in suit jointly with the other petitioner, Riaz Ahmad. therefore, if learned counsel has to go by mere assumptions then he should assume also that the respondent could be aware of the principle of sinker getting attracted in the above; circumstances and he may well have filed the suit in exercise of his legal right so that his admission about his presence may be nothing but an honest admission of truth which does not estop him from suing In Mahmud Bakhsh v. Hassan Bakhsh and others (7 P R 1912), a Division Bench of the Chief Court observed : "The next question is, whether the plaintiff himself waived his rights. For the vendees certain witnesses have appeared who say the plaintiff was present when the bargain was struck, but all that they say is that plaintiff kept silence. Now this evidence, even if we accept it, does not prove anything amounting to waiver. A man may be present at the time of sale, but the mere fact that he does not then announce his intention of bringing a suit to pre-empt cannot debar him. He has a whole year in which to make up his mind whether he will assert his pre-emptory rights. If the vendee were at time of sale to ask him if he intended to exercise these rights he might, of course, reply that he waived his rights ; in such a case he would of course be estopped. But he would be equally justified in saying that he had not yet made up his mind whether he would assert those rights or not, and that for the present he was content no reserve the option and to refrain from a waiver of right. Where no question is asked and a pre-emptor keeps silence, how can acquiescence he assumed?" For all the foregoing reasons, I am unable to uphold the contention of the learned counsel.

3. Learned counsel has not pointed out any jurisdictional error in the appellate judgment wherein learned Additional District Judge has taken a correct view of the law.

4. The Civil Revision is devoid of substance and is, therefore, dismissed in limine. A. A. Revision dismissed.