P L D 1993 Lahore 836 (PLP)

This Regular Second Appeal arises out of suit for possession through ?pre-emption filed by Rahmat and Riaz respondents Nos.1 and 2 on 18-3-1968 in the Civil Court, Lahore. The right of pre-emption claimed on the ground of being sons of vendor Ch. Jawana respondent No.3). The appellants/vendees resisted the suit and filed their written statement in the Court whereupon the following issues were framed on 9-7-1968:-- ISSUES: (1) Whether the plaintiffs have waived their rights if any? O.P.D. (2)??? Whether the plaintiffs are estopped from filing of this ? (3)??? Whether the plaintiffs have superior right of pre-emption qua the vendees? O.P.P. (4)??? Whether the ostensible sale price was fixed and paid in good faith??????????? O.P.D. (5)??? If issue No.4 is not proved what is the market value of the suit? property? O.P.D Parties. (5-A) Whether the suit is not competent in its present form? O.P.D. (5-B) Whether the plaint reveals no cause of action? O.P.D. (5-C) Whether the plaintiffs have claimed a set-off and as such the suit is not properly valued for court-fee and jurisdiction? O.P.D. (5-D) Whether the defendants have caused improvements, if so to what extent and with what effect? O.P.D. (5-E) Whether the suit is bad for partial pre-emption? If so, what is its effect? Onus objected to. (5-F) Whether the suit has been correctly valued for the purposes of court- fee and jurisdiction? If not what is the correct valuation for both the purposes ? O.P.P. and Parties. (6) Relief.

2. Thereafter on 28-10-1970 issues Nos-5-A to 5-D were added. Yet another issue No.5-F was framed on 13-2-74.

3. The parties produced their oral as well as their documentary evidence. The plaintiffs/respondents No.1 and 2 produced Meraj Din, Halqa Patwari (P.W.1), Umar Din (P.W.2), Natho (P.W3), Hakim Ali (Special attorney of Mst. Inayat Bibi next friend of minors) (P.W.4), Abdul Khaliq (P.W.5), Jalal Din (P.W.6) and Jawana, vendor (P.W.7). They also tendered in evidence document ExhY.1 (average of sale price) pedigree-table, P.W.4/1 pedigree?table P.W.4/2 the disputed sale-deed. On the other hand the appellant produced Khushi (D.W.1), Babo Khan (D.W.2), Ali Ahmad (P.NV3), Muhammad Iqbal (D.W.4) and Muhammad Azain (appellant No.1) (D.W.5), Fazal Din (D.W.6), Sardar Muhammad (D.W.7). They tendered the copy of Mutation No.16/22 (Exh.D.1 pertaining to We of another piece of land measuring 90 Kanals 11 Marlas made by Jawana, respondent No3). The above issues including issues Nos.4 and 5 pertain to sale price of the disputed land which was settled on special oath made by Muhammad Azam (appellant No.1) on 23-6-1975. Accordingly, the price of disputed land was settled as Rs.27,

255. The trial Court held on issue No.1 that the plaintiffs/respondents Nos.1 and 2 being sons of the vendor enjoyed superior right of pre-emption. The other issues were decided (except issue No.5) in favour of the plaintiffs/respondents Nos.1 and 2 and the suit decree by the learned trial Court vide judgment and decree dated 13-5-1976. The first appeal filed by the appellants was dismissed by the learned Additional District Judge, Lahore, vide his judgment and decree dated 11-11-1984.

4. The arguments in this case were first heard on 6-4-1993 when the appellants' learned counsel stated in the very outset that he did not challenge the superior right of pre-emption of respondents No.1 and No.2. However, subsequently during the course of his arguments he tried to attack their pre?emptive right. The respondents' learned counsel took exception to the same and urged that after having made a statement in the Court, the appellants' learned counsel could not be allowed to deviate from the same. I agree with the respondents' learned counsel that after having made a statement that the superior right of pre-emption enjoyed by respondents Nos.1 and 2 was not challenged, the appellants' learned counsel cannot be allowed directly or indirectly to attack the said right. Even otherwise, the trial Court has recorded a correct finding on issue No3 regarding the pre-emptive right of plaintiffs/respondents Nos.1 and 2 after proper appraisal of the material on the record. Their superior right was even admitted by Ali Ahmad, D.W.3. Subsequently he filed an application before the trial Court stating therein that he had erroneously made the admission but the said application was dismissed by the Court on 18-7-1975. Therefore, the findings of trial Court on issue No3 are maintained.

5. The appellants' learned counsel strenuously urged that the plaintiffs/respondents Nos.1 and 2 had no cause of action. He explained that they had offered to pre-empt the suit land on payment of Rs.21,455 and did not offer the hill price amounting to Rs.27,

255. He further submitted that the suit filed by respondents Nos.1 and 2 stood dismissed as they failed to deposit the decretal amount within a period of 2months, as ordered by the trial Court. He further submitted that the respondents/plaintiffs had waived their right of pre?emption and that the contrary findings of the Courts below on issue No.1 wefe illegal. He pointed out that the decree was passed on 13-5-1976 but the decretal amount was not deposited within 2 months. He placed reliance on the case of Muhammad Taj and another v. Subedar Muhammad Rasheed 1989 SCMR 505. 1

6. On the other hand the learned counsel for the respondents urged that ,being vested with the pre-emptive right the respondent did have cause of action to pre-empt the sale. He further submits that at the time of the sale the respondents were minors and were living with their father, their natural guardian. The act of the father could not have the effect of waiver or collusion on the part of the minors. He adds that waiver is a conscious act on the part of a person who is sui juris. In this connection he placed reliance on the cases of Muhammad Amin v. Maqbool PLD 1990 Lah. 397, Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 other's PLD 1982 SC

159. He further explained that the present appellants had filed an appeal along with an application for temporary injunction on which the Court had passed the following order on 3-&1976: According to the respondents' learned counsel this order amounted to stay of the operation of the decree. After the said order the respondents could not deposit the decretal amount. He further submitted that the Court also treated it as a stay of the decree and in final judgment allowed time for one month to the respondents to deposit the decretal amount, accordingly it was deposited on 11-11-1984. He also urged 'that the respondents had filed their cross ?objections on 5-7-1976, well before the expiry of the period of two months for depositing the decretal amount, with an application for suspending the operation of the impugned decree. However, the court did not pass any order on the same presumably for the reason that the Court considered the earlier order to be a stay order. In support of his contentions he placed reliance on the following judgments:-- (1) Hakim Ali and another v. Iftikhar Ahmad Khan 1990 SCMR 1V 1. ?(2)? Ibraheem and another v. The State 1982 SCMR 434. (3)??? Muhammad Bashir and another v. Syed Altaf Hussain Shah through?????????? *J ?????????? his Legal Heirs and 5 others 1990 SCMR 3. (4)??? Shah Muhammad and another v. Ghulam Muhammad and another ?????????? 1988 SCMR 1378. (5)??? Muhammad Amin v. Maqbool PID 1990 Lah. 397 and (6)??? Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others ?????????? PLD 1982 SC 159. ????????????????? Lastly, he submitted that judgment in Muhammad Taj?s case relied upon by the appellants learned counsel is because the Court had clearly ordered that the decretal amount be paid before 3-12-1977. Meaning thereby that the last date for deposit was 2-12-1977. The position was not affected by any other order because no appeal was filed against the decree. Therefore, the deposit made on 4-12-1977 was inconsequential as the suit stood dismissed on 3-12-1977. ??????

7. There is considerable force in the arguments raised by the respondents' learned counsel. The issue relating to cause of action is in the following words 'whether the plaint reveals no cause of action'. The trial Court decided the said issue in favour of the plaintiffs/respondents Nos.1 and 2 but it appears that this point was not agitated before the appellate Court (although, a ground was taken in the memo. of appeal). Therefore, the appellate Court's findings on issues Nos. 1, 3,4-E, 5-F and issues ' Nos. 1 and 2 framed on 15-1-1970 were challenged in the present appeal Moreover, in the appeal the above point relating to cause of action was not taken. Hence, the learned counsel for the appellants could not be allowed to agitate the said point. As regards second argument of the appellants' learned counsel regarding deposit of the decretal amount, suffice it to say that the appellants had filed an appeal with an application for temporary injunction on which the appellate Court ordered status quo in respect of the disputed land. The respondents learnt about the order and considered it to be a stay order in all respects. They also filed their cross-objections with an application for suspending the operation of the impugned decree. This application was duly stamped and supported with a sworn affidavit. The Court did not pass any order on the same presumably due to the impression that the stay 6d already been granted in the appeal filed by the present appellants. It is settled principle of law that nobody can be allowed to suffer due to the act of the Court. The Court had on the one hand, ordered status quo in the appeal and on the other, to pass a fresh order on the respondents' application for suspending the operation of the decree. Under these circumstances, there was no wilful default on the part of the respondents in depositing the decretal amount. Subsequently while dismissing the appeal the appellate Court allowed time for one month to respondents Nos.1 and 2 to deposit the amount. They deposited the amount in compliance with the said order. Hence, in the circumstances narrated above the suit did not stand dismissed after the expiry of two months from the date of the decree of the trial Court. The judgment relied upon by the appellants' learned counsel in the case of Muhammad Tai is distinguishable because no appeal was preferred against the decree of the trial Court and the question of being prejudiced by the act of the Court was not in issue. The order of the trial Court was clear and in case of non-compliance the consequence of dismissal of the suit had to ensue as a matter of course. In the present case the appellate Court had passed the status quo order (on the first appeal first by the appellants) and had omitted to pass any order on the stay application filed by the respondents in their cross-objections. In Hakam Alis' case the Hon'ble Supreme Court was pleased to hold as under:-- ? ????????????????????????? As regards waiver, respondents Nos.1 and 2 were admittedly minors at the time of the sale and residing with their father who was their natural guardian. The act of the father could not be construed as? or estoppel qua plaintiffs/respondents Nos.1 and

2. Waiver is a conscious act on the part of a sui juris person abandoning his legal right. The respondents/plaintiffs were not capable of doing this conscious act due to their minority. Even in case of a major person, mere presence 4-44e son with' his father who makes the sale, is not sufficient to constitute waiver so as to disentitle the son from filing the pre?emption suit. I am fortified in my view by the judgment of this Court 'in the case of Muhammad Amin relied upon by the respondents' learned counsel. D Moreover, the question of waiver is one of acts which has been decided by the Courts blow against the appellants after proper appraisal of evidence. No mis- reading or non-reading of evidence has been pointed out by the appellants' learned counsel to justify interference in the findings of Courts below on issues Nos.1 and 2. "The trend of authority is that in such like circumstances when it is on account of an act of Court that party is likely to suffer harm, the Court would not let it suffer any such harm. After referring to the judgments of the Hon'ble Supreme Court in the cases of Malik Hadayat Ullah and 2 others v. Murad Ali Khan PLD 1972 SC 69 and Bhai Khan v. Allah Bal-h-gh and another 1986 SCMR 849 the Court was pleased to hold further that it was the discretion of the Court in such like matters to treat the deposit as without default.

9. For the foregoing discussion, I do not find any merit in this appeal which is dismissed leaving the parties to bear their own costs. A.A./M-1170/L Appeal dismissed