2003 PLP 1109 (MLD)

(5) Whether the plaintiff has superior right of pre-emption? OPP (6) Relief. Parties led their respective evidence. Thereafter, considering the material on record, learned trial Court vide its judgment and decree dated 22-6-1986, decreed the suit in favour of respondent/plaintiff. This decree was assailed through an appeal, which was dismissed by the learned Additional District Judge vide judgment and decree dated 3-7-1989. Both these judgments and decrees are being assailed through the instant second appeal.

2. Learned counsel for the appellants contends that appellant No. 1 was never served before both the Courts below. It is further submitted that the appellant No. 1 being an Indian national was required to be served through special procedure prescribed by the Civil Procedure Code. The Courts below have failed to follow the law. Therefore, the trial held in the absence of appellant. No. 1 was coram non judice. It is further submitted that no postal receipts regarding the issuance of notice at the given address of appellant No. 1 are available on record. It is further submitted that the publication made by the Courts below in the local newspapers of Pakistan was of no consequences, as no publication was got effected in India. It is next submitted that since the property in dispute was re-sold by vendee (respondent No. 2) to appellant No. 1 (vendor) within the period of limitation, therefore, respondents had no superior right of pre-emption. It is explained that re-sale took place through Mutation No.725 Exh. D.1, which was entered on 24-6-1984, while the statements of parties were recorded by the Revenue Officer on 26-6-1984 but the attestation was deferred for a future date only for the purpose of deposit of District Council Fee etc. It is thus contended that for all practical purposes, the sale was complete on 26-6-1984. Relied on PLD 1982 Supreme Court 41.

3. With reference to PLD 1971 Lahore 171 contends that principle of lis pendens is not applicable in the pre-emption cases.

4. With reference to superior right the relationships as under are admitted by the parties i.e. respondent No.2 (vendee) is real paternal uncle's daughter of appellant No. 1 (vendor) and respondent (plaintiff/pre-emptor) is real sister of appellant No. 1 (vendor).

5. It is contended by the learned counsel for the appellants that respondent being real sister is a sharer, therefore, for the purposes of, inheritance she would be entitled to 1/2 as a sharer and the balance will go to appellant Nar.2 being real paternal uncle's daughter: Therefore, it is contended that both the pre-emptor and the vendee being entitled to the inheritance are having equal right of pre-emption, no superiority of right can be attached to respondent, real sister. Relies on PLD 1973 Lahore 878.

6. On the other hand, learned counsel for the respondent contends that only provision for the service of the defendant residing outside. Pakistan is provided in Order 5, rule 25, P.P.C. According to which, if a defendant resides outside Pakistan and has no agent in Pakistan to receive summons, then summons shall be sent to him by post. In the instant case, twice summons were sent by the trial Court and the Appellate Court as well, at the given address of appellant No.1, therefore, relying on PLD 1989 SC 503 and 1979 CLC 48 contends that issuance of summons shall be presumed to be sufficient for service upon appellant No.1.

7. It is also pointed out by the learned counsel for the respondent that the instant appeal has been filed by Rashid Ahmad Khan a General Attorney of appellant No.1 constituted in his favour in the year 1977. The said Rashid Ahmad Khan is husband of Mst. Baigi, appellant No.2. Therefore, it is contended that the appellants are in collusion with each other to defeat the right of the respondent.

8. It is next submitted with reference to 1981 CLC 129 and PLD 1987 Pesh. 21 that if a vendee re-sells a property in dispute to his original vendor even within the period of limitation, it will have no effect so far as respondent's right of pre-emption is concerned.

9. It is finally submitted that respondent being real sister of the vendor falls in the category. of sharer and appellant No.2 being real paternal uncle's daughter falls in the category of distant kindred, who will be excluded for the right of inheritance in the absence of residuaries and thus not equipped with any right of pre-emption.

10. I have considered the arguments of the learned counsel for the parties and also have perused the record.

11. The only provision for the service of defendant residing outside Pakistan is provided in Order 5, rule 25, C.P.C. According to which, service of such defendant can be got effected by issuance of summons addressed at the place where he is residing out of Pakistan to be sent by post provided such defendant does not has any agent in Pakistan to receive summons on his behalf. In the instant case appellant No. 1 has not disclosed that she has any agent in Pakistan through whom service could have been effected on her behalf nor it is alleged that her address in India on which the summons were issued is incorrect. So in the circumstances, since the postal receipts are available on the record of the trial Court on the address of. appellant No. 1 in India, therefore, it will be presumed under section 26r of the General Clauses Act, 1897 that the service was properly effected upon appellant No. 1,. in the trial Court and Appellate Court. The law referred by the learned counsel for the respondent i.e. PLD 1989 SC 503 and 1979 CLC 48 is fully applicable to the case. Although, the publication in the newspaper was not the requirement of the law but still the Courts below had also adopted this measure as well.

12. Resale to a vendor and resale to a third person having superior right than the pre-emptor, within the period of limitation are two different categories. A vendee can legally defeat. a pre-emptor by re selling the property in dispute to a .third person within the period of limitation having superior right than the pre-emptor but if a property is A resold to the original vendor, may be during the subsistence of the limitation period, such resale would not defeat the right of pre-emption against the original sale. It was, so held in 1981 CLC 129 and PLD 1987 Pesh.

21. It is no doubt correct that mutation of sale bearing No.7551 was attested on 3-4-1985 but for all practical purposes the sale became complete on 26-6-1984, when the statement of parties was recorded by the Revenue Officer and the matter was adjourned only for the procedural completion for deposit of District Council Fee etc. In this view of the matter, although, the resale took place within the period of limitation but this fact becomes inconsequential and irrelevant because as earlier held resale in favour of original vendor does not defeat the right of pre-emption against the original sale.

13. In view of the admitted relationships of the parties respondent is a sharer and appellant No.2 is a distant kindred of appellant No.

1. Respondent as a sister/sharer will get 1/2 and the other 1/2 will also be returned to her as contemplated in para. 66 of Muhammadan Law by D.F. Mulla as there is no residuary. Therefore, appellant No.2 being distant kindred would be excluded. Therefore, appellant No.2 was having no right of inheritance, thus no right of pre emption. For what has been discussed above, I find no merit in this appeal, the same is accordingly dismissed. H.B.T./S-507/L Appeal dismissed.