P L D 2006 Lahore 296 (PLP)

UMAR ATA BANDIAL, J.

This is revision petition filed against the order of the learned appellate Court dated 17-5-1986 whereby the appeal filed by the respondents was accepted and the judgment of the learned trial Court dated 11-4-1985 decreeing the pre-emption, suit of the petitioners/plaintiffs was set aside.

2. The superior right of pre-emption of the petitioner is admitted and the only question is whether the petitioner has waived his right of pre-emption in respect of the suit-land measuring 8 Kanals 16 Marlas situated in Chak No.544 G.B. Tehsil Sumandari. District Faisalabad? The learned trial Court discarded Exh.D, which is an agreement dated 14-4-1981 executed by the seven plaintiffs in the suit in favour of the vendor of the land sold to the respondent-vendees. The agreement Exh.D.2 contains an undertaking by, inter alia, the parties not to file claims for pre-emption against sale transactions of land made by either side. The said exhibit was rejected by the learned trial Court on the ground that it did not contain the details of land in respect of which the agreement purported to operate.

3. The learned appellate Court took a different view of the said exhibit, firstly, on the ground that its execution was admitted by the petitioner and secondly because in terms of the promise not to sue on the ground of pre-emption, the said exhibit constituted a valid agreement. Reference was made by the learned appellate Court to the judgment in Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 to state that the right of pre-emption can be waived before the actual sale, either by express refusal to purchase the property or by clear conduct on the part of the plaintiffs showing that they have no interest in the purchase of the property.

4. Learned counsel for the petitioner has argued that the plea about agreement of waiver does not find mention in the written statement and is therefore, ineffective in any case the agreement cannot be termed as a waiver of right of pre-emption under the rule laid down by the superior Courts. She has relied upon case of Abdul Rashid v. Bashiran and another 1996 SCMR

808. This judgment holds that the presence of' the pre-emptor at the time of the bargain does not constitute evidence of waiver. On the other hand the learned counsel for the respondents has urged that the execution of the agreement Exh. D.2 is admitted by the petitioner.

5. I have considered the submissions made by the learned counsel for the parties and perused the record. The Court has read the record and noticed that the plea of waiver is contained in the written statement by the respondents-defendant and is duly reflected in Issue No.3 framed by the learned trial Court. The execution of the said document is also admitted by the petitioner-plaintiffs. In fact before this Court only one out of seven plaintiffs has challenged the judgment of the learned appellate Court. Therefore, the said agreement cannot be lightly brushed aside. Taken upon its terms the agreement constitutes a disclaimer from challenge by pre-emption to ally sale transaction arrived in respect of the property by either party to the agreement. The view taken by the learned trial Court to exclude Exh.D.2 is highly technical. The land forming the subject-matter of the agreement is that which is pre-emptible by either of the parties and it can be ascertained without difficulty. Whilst construing an instrument the plain intention must be gathered and applied. Reference is made to House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR

19. For the purpose of enforcing the instant disclaimer, the fact that the subject-matter land is capable of ascertainment is sufficient to make the promise valid and binding. The suit for pre-emption filed by the petitioner has, therefore, violated the said promise in the agreement.

6. The consequence of waiver has been held by the Honourable Supreme Court in Naseer Ahmed v. Arshad Ahmed PLD 1984 SC 403 to be the foreclosure of the right to pre-empt. It goes without saying that the express disclaimer by the petitioner constitutes a relinquishment of his right to pre-empt. The undertaking given by the petitioner does not merely raise an inference by conduct but amounts to a promise to forego the right to pre-empt. Therefore, the bar is both express and enforceable Consequently, the above agreement dated 14-4-1981 (Exh.D.2) signed by the petitioner forecloses the petitioners' right of pre-emption alleged in the suit and presently also in this petition. The suit for pre-emption is not maintainable and therefore this petition also fails and is dismissed with no order as to costs. M.B.A./M-116/L???????????????????????????????????????????????????????????????????????????????? Petition dismissed.