P L D 1972 Supreme Court 59 (PLP)

"If a plaintiff who has a right of pre-emption joins with himself as co-plaintiff a person who has no such right he is not entitled to claim pre-emption and the suit must be dismissed." The learned counsel has also referred to K. P. Seksena's Muslim Law at page 772 (4th Edition), Principles of Muhammadan Law by Wilson (5th Edition), page 388, and Principles of Mohammadan Law by Faiz Badruddin Tayabji ((913 Edition), page 462, in which similar view has been expressed. A reference to the passage referred to above in D. F. Mulla's Principles of Mohammadan Law will show that it is based on the decisions of the Allahabad High Court which will be presently referred to. There is no original text of the Muslim Law on this point. None has been referred by the learned counsel for the appellants and I have also not been able to find out any such principle of Mohammadan Law on this point. It is, therefore, not possible to hold that the principle enunciated in the above passage is a rule of Muhammadan Law. In support of his contention that if a plaintiff who has a right of pre-emption joins with himself as co-plaintiff a person who has no such right, he loses his right of pre-emption and the suit is liable to be dismissed for this reason, the learned counsel for the appellants has placed reliance on the cases of Bhawani Prasad v. Damru (I L R 5 All. 197), Karan Singh and another v. Muhammad Ismail Khan (I L R 7 All. 860), Bhupal Singh v. Mohan Singh (I L R 19 All. 324), Shankar Gal v. Krari Mal and others (A I R 1924 All. 81), Omar Draz v. Sri Ram Dass (A I R 1925 All. 355), Sheo Balak Chaudhary and another v. Saran Chaudhary and others (A I R 1933 All. 788), Badri Dutt and others v. Siri Kirishan and others (A I R 1954 All. 94) and Tokh Narain Puri v. Rain Rachhya Singh and others (90 I C 806). The leading authority on this subject is the case of Bhawani Prasad v. Damru. In this case, it was held by a Division Bench of the Allahabad High Court that applying the doctrine of Mohammadan Law of pre-emption, such doctrine being in accordance with justice, equity and good conscience, a co-sharer in a village having a right of pre-emption loses his right if he joins a stranger with him in enforcing such right. In this connection Mahmood, J. observed as under :

"It is clear that there exist no definite rules of substantive law by which questions of this nature, relating to the right of pre-emption claimed under the terms of the Wajib-ul-arz, are governed. It is only on the broad principles of justice, equity and good conscience that such questions can be dealt with by the Courts. The right of pre-emption, though it has under gone some essential alterations, induced either by the force of custom or the express stipulations of co-parcenary bodies of proprietors, is not traceable, at least in these Provinces, to any sources other than the influence of the Mohammadan Law. A Full Bench of the Calcutta High Court in the case of Fakir Rawot v. Sheikh Emambaksh B L R F. B. Rul. 35 arrived at similar conclusions : and in two recent cases a Division Bench of this Court has broadly accepted the principle that, in the absence of circumstances to the contrary, the Court in administering equity in cases of pre-emption, will follow the analogies furnished by the rules of the Muhammadan Law of pre-emption, so long as those rules are consistent with the principles of justice, equity and good conscience." The learned Judge further observed as under :

"The rule of law by which a person, entitled to pre-emption, forfeits his right is based upon the principles of equitable acquiescence, which forms one of the most important elements of restrictions imposed upon the vindictive or capricious exercise of the right of pre-emption. Those restrictions appertain to the very essence and nature of the right-restric tions which, if ignored, would defeat the policy on which the right of pre-emption is based. A person who, whilst possess ing the pre-emptive right, takes part in transacting the sale to a stranger, or who, in purchasing property himself, joins a stranger in such purchase, cannot, on the one hand, subsequently object to the sale which has with his acquiescence violated the pre-emptive right ; nor on the other hand, can he resist the claim of other pre-emptors who, in suing for pre emption, vindicate the policy of the right. The rule is, that a person cannot claim a right which he has himself violated, nor can he be allowed to complain of an injury in which he has himself acquiesced. Applying these principles to the present case, it seems to us that the very fact that Damru, in suing for pre-emption, joined with him two other persons who had no such right, must be taken to amount to such acquie scence in the sale as estops him in equity from complaining of the sale." It will be noticed that the learned Judge has not referred to any rule of Mohammadan Law. He has decided the question on the broad principles of justice, equity and good conscience. Changez, J. has rightly pointed out in the case of Raja and others v. Hussain and others that this decision is not based on any analogy furnished by the rule of Mohammadan Law of pre-emption. It will be further noticed that the learned Judge did not also consider the question that if in a case the name of the stranger is struck off what will be its effect on the fate of the suit. This view did not find favour with the Punjab Chief Court in the leading Punjab case on the subject, namely, Sharaf and another v. Peer Bakhsh and another (83 P R 1893). It was held in that case that such a suit is maintainable by the pre-emptor alone if the name of the stranger is struck off from the record. In this connec tion, Sir Meredyth Plowden S. J. observed as under :

"We are unable to assent to the view of the High Court, or to the reasoning upon which it is founded. If A has a right of pre-emption on a sale by B to C, and', under the impression that D has an equal right with himself, joins him as co-plaintiff, and it appears that D has no right, upon what principle can it be held that A's right is forfeited ? The analogy between a pre-emptor as purchaser joining a stranger with him in the purchase, and a pre-emptor as plaintiff joining with him a stranger as co-plaintiff, is not so complete as necessarily to entail the same consequences. In the first case, the pre-emptor purchases in violation of the rules regulating pre-emption, and his act is incapable of being undone. In the second, the error is in the form of the claim made in Court, and can be remedied without infringing the right of any person. The question in the former case may be one of the law of pre-emption, or of justice, equity and good conscience ; in the later, it is a question of the law of pro cedure in enforcing by suit a right of pre-emption. It may be quite just to say to pre-emptor, you alone had a preferential right to purchase, but you and a stranger together had not; and yet quite unjust to say to him, you have a preferential, right of pre-emption to sue the defendant, but you have forfeited it by the erroneous belief that your co-plaintiff had are equal right. We have in the present instance to deal with the latter case only, and not with the former. There is, in our opinion, no reason why the plaintiff, Makhan, should not maintain this suit alone, after the name of Sharaf has been struck out of the plaint; and we know no rule either of pre-emption, or of procedure which deprives the plaintiff Makhan of his right of pre-emption, or requires that his suit should be dismissed because Sharaf was erroneously joined in the plaint as a co-plaintiff. We direct that the name: of Sharaf be struck out of the plaint, and that the appeal in the Court of the Divisional Judge be heard on its merits as an appeal by Makhan alone." This decision was followed in Punjab in the cases of Khawas Khan v. Rasul Khan and another (29 P R 1894 ), Hira Lal and others v. Ibrahim and others (102 P R 1894), Mst. Mangli and another v. Sobbu Singh and another (218 P W R 1913), Allah Ditta and others v. Qaim Din (60 I C 692) and Raja and others v. Hussain and others. In the last mentioned case, the entire case-law was reviewed by Changez, J. It was held in that case that the right of a pre-emptor-plaintiff is not lost if in a suit to enforce his right he joins with him a stranger. If such plaintiff however, insisted in getting the relief jointly, then it was obvious no relief could be granted at all to them. But the question assumes an entirely different complexion if the so-called stranger-plaintiff is willing to withdraw from the suit at any stage of the proceedings. The mistake in joining as a co-plaintiff is procedural and is remediable by amendment under Order I, rule 10, C. P. C., even at appeal stage. It was further held that under sub-clause (2) of Order 1, rule 10, C. P. C., the Court has power to strike out or add parties at any stage of the proceedings with or without an application. Sh. Muhammad Shafi, learned counsel for the appellants, has contended that view taken by the Allahabad High Court should also be applied in the Punjab Province and the view taken by the Punjab Chief Court should be overruled. This question has received my anxious consideration. In my opinion, the principles followed in the Allahabad High Court cannot be applied to the Punjab Province because in Allahabad, Calcutta and other Provinces the law of pre-emption is applied on the basis of principles of Mohammadan Law. This is not the position in Punjab. The right of pre-emption in Punjab is no regulated by statute. Formerly, it was based on custom. It has nothing to do with the Mohammadan Law of Pre-emption. Even in Oudh where formerly Mohammadan Law of pre-emption was applicable the view of the Allahabad High Court was not accepted. In the case of Abdulluh v. Mst. Wahidunnisa (1 Oudh Cas. 308), Chamier A. J. C, considered the decision of Mahmood, J. in Bhawant Prasad's case referred to above. The learned Judge agreed with the enunciation of the principles but distinguished it on the ground 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 a stranger as a plaintiff to the suit could be remedied under an order of the Court. A reference to this effect will be found in the following passage appearing in the case of Badri Datt and others v. Shri Kishan and others at page 95 :

"The very next year, however, the point arose before a Division Bench of the Judicial Commissioner's Court at Lucknow in Abdullah v. Mst. Wahidunnisa I Oudh Cas.

308. In that case Chamier, A. J. C. discussed the decision of Mahmood, J. in Bhawani Prasad's case, cited above and, though the learned Judge agreed with the ennuciation of the Principles, he thought that its applica tion to the case was not correct. The reason given by the learned Judge was 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 a stranger as a plaintiff to the suit could be remedied under an order of the Court. The learned Judge also went on to say that a plaintiff may make a `bona fide' mistake without realising that the co-plaintiff is a stranger. The same argument of a bona fide mistake can, however, be advanced in favour of a vendor who may have in ignorance of the real position allowed a stranger to join as co-vendee with him. The other learned Judge dealt at some length with the law as regards estoppel and the law as regards acquiescence and held that the doctrine of estoppel and acquiescence did not apply." The view of the Allahabad High Court was also not followed by the East Punjab High Court in one of its recent Full Bench decisions in the case of Bachan Singh and others v. Bhupal Singh and others (1). It is quite true that the provisions of the Pre-emption Act are technical and the Pre-emption Law is a piratical right but this would not mean that in procedural matters the provisions of the Civil Procedure Code are not appli cable. In my opinion, the joining of a stranger as co-plaintiff is a procedural defect and can be remedied by striking off the name of such a person under Order I, rule 10, C. P. C. at any stage of the proceedings. Sub-clause (2) of Order I; rule 10, C. P. C. which is reproduced below gives ample powers to the Court to strike out or add party at any stage of the pro ceedings with or without any application :

"The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." I agree with the view of the Punjab Chief Court that a defect of this nature can be remedied under the procedural law. It will be further noticed that the decisions of the Allahabad High Court have also been recognised by the Legislature in he Agra Pre-emption Act (No. XI of 1922). Section 21 of that Act provides as under :

"Where a person having a right of pre-emption sues jointly with a person not having such right, and where a pre-emptor of higher class sues jointly with a pre-emptor of a lower class he shall have no higher right than the person with whom he so sues." This is not the position in Punjab. In my opinion, if the view of the Punjab Chief Court was not in accordance with law, the Legislature could have incorporated a provision on the above lines in the latter enactment on this subject. 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. In the light of the above discussion, I am of the view that the High Court was competent to strike off the name of Imam Din from the array of the parties and was quite right in granting relief to the rest of the respondents in respect of the pre-emption of the property in dispute. I would, therefore, hold that the decision of the High Court calls for no interference. For these reasons I would dismiss the appeal but in the special circumstances of the case direct the parties to bear their own costs. HAUOODUR R AHMAN, C. J. -I agree. MUHAMMAD YAQUB ALI, J.-I agree. SAMAD AHMAD J.-I agree. SALAHUDDIN AHMED, J.-I agree. K. B. A. Appeal dismissed