2005 PLP 603 (CLC)

In a suit for pre-emption instituted by the respondent an application for rejection of the plaint was filed by the petitioner-vendee, which application was accepted by the learned trial Judge on his view that the suit was for partial pre-emption and accordingly ordered the rejection of the plaint on 7-6-2004. Appeal preferred thereagainst by the respondent-plaintiff, however, succeeded before the learned Appellate Court. Vide his judgment, dated 25-10-2004, by reversing the order of the learned trial Court, the matter was remanded by the learned Additional District Judge, Faisalabad for decision of the suit in accordance with law. This is appeal by the vendee-defendant qua the abovementioned appellate judgment.

2. The learned counsel contends that not only the suit was for partial pre-emption and the plaint was rightly rejected by the learned trial Court, the suit was barred by time as well. It is contended that the learned Appellate Court has misconstrued the provisions of sections 19 and 20 of the Punjab pre-emption Act, 1991.

3. In order to support the view taken by the learned Appellate Court the learned counsel for the respondent refers to the provisions of sections 19 and 20 of the Act and contends that the suit could only be filed by the said respondent qua the property which was pre-emptible and the suit was not hit by the principle of partial pre-emption. He has made reference to Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570, Muhammad Latif Khan and others v. Lal Khan and others PLD 1979 SC (AJ&K) 123, Abdul Rehman v. Muhammad Khan alias Khan Muhammad 2003 MLD 374, Sarfraz Khan v. Nimatullah Khan 2002 SCMR 751, Malik Hussain and others v. Lala Ram Chand and others PLD 1970 SC 299, Ali Akbar v. Muhammad Anwar 1981 SCMR 775, Allah Din and others v. Jan Muhammad and others PLD 1951 Lah. 163 and Dhala v. Khanun and others AIR 1935 Lah. 635 in support of his contention.

4. The appellant-vendee had purchased land measuring 17 Kanals, 16 Marlas through sale-deed dated 17-7-2003. The suit instituted by the respondent was for half of the land as he had claimed his equal right of pre-emption, i.e. equally entitled with the vendee. Such a suit was treated as for partial pre-emption by the Trial Court who ordered the rejection of plaint whereas the learned Appellate Court had taken the view that the suit was not hit by the principle of partial pre-emption as the respondent-plaintiff had sued for the whole of the property pre-emptible . Such a view had been taken by him in view of the provisions of section 19(2) read with section 20 of the Act. Thus the controversy that had cropped up in the instant case is whether the suit instituted by the respondent-plaintiff was hit by the principle of partial pre-emption and the approach adopted by which of the two Courts was correct and consistent with the law. In order to comprehend the legal provisions attracted to the matter, reference to provisions of sections 19 and 20 of the Act, may be of relevance which are reproduced hereunder:-- Section

19. Right of pre-emption non-transferable and indivisible.

(1) Save as provided in section 16, the right of pre-emption shall be non-transferable and indivisible. (2) The claim for pre-emption shall be made on the whole property pre-emptible. Section

20. Where the pre-emptor and vendee equally entitled.

Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally.

5. The import of the provisions of section 20 is that where the pre-emptor and the vendee fall within the same class and had equal right of pre-emption, the property shall be shared by them equally. Though subsection (1) of section 19 of Punjab Pre-emption Act, 1991, prohibited (subject to provisions of section 16 of the Act), the divisibility of right of pre-emption, subsection (2) laid down that the claim for pre-emption shall be made on the whole property pre-emptible. The key phrase in the context is the whole property pre-emptible . The question, therefore, arises that when the right of the respondent-plaintiff extended to half of the property pre-emptible could he be non suited by applying the principle of partial pre-emption. In Dhala v. Khanun and others AIR 1935 Lah. 635, it was highlighted that it is a well-established principle of the law of pre-emption that a pre-emptor, whose right extends over the entire property sold, must take over the bargain in its entirety, and has no right to pre-empt a part of the property sold on payment of a proportional part of the price . It was observed that the plaintiff was not entitled to treat the transaction as divisible, as in such eventuality, the suit might be hit by the principle of partial pre-emption. That was a case where the right of pre-emption extended to the entire property. In Allah Din and others v. Jan Muhammad and others PLD 1951 Lah. 163, it was observed that the right of pre-emption was a right of substitution and in exercise of that right the plaintiff must take over the whole bargain, certain exceptions to the rule were, however, stated including the one that the pre-emptor can only sue in respect of that part of the bargain over which he can assert his superior right as against the vendee. Of course, he cannot omit to claim any of the property comprised in the bargain to which his right of pre-emption extends . In Malik Hussain and others v. Lala Ram Chand and others PLD 1970 SC 299, it was observed that the right of pre-emption is in essence a right of substitution, it means that the pre-emptor, in the event of the success of his claim, stands in the shoes of the vendee as respects all rights and obligations arising from the sale of the property under pre-emption . It was, however, noted that A pre-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre-emption extends over only a portion of the property sold . (emphasis supplied by underlining). In Ali Akbar v. Muhammad Anwar 1981 SCMR 775 it was observed that concept of partial pre-emption comes into play when pre-emptor does not ask for his substitution in respect of the whole of the subject-matter of sale to which right of pre-emption extends . (underlined by me) it was observed A pre-emptor is not to pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not . In Muhammad Latif Khan and others v. Lal Khan and others PLD 1979 SC (AJ&K) 123, the Supreme Court of Azad Jammu and Kashmir also had taken a similar view and it was observed that no pre-emptor can be permitted to have a portion of the property even on payment of the whole price. If it is allowed, it would frustrate the basic policy on which the pre-emption right is based. This, however, is subject to certain limitations . that a pre-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not . The view so taken is consistent with the view adopted by the Courts in Pakistan even under the erstwhile pre-emption law. On repeal of Punjab Pre-emption Act, 1913, Punjab Pre-emption Act 1991 (Act IX of 1991) was enacted to bring the law in conformity with the Injunctions of Qur an and Sunnah.

6. Section 20 of the Act, IX of 1991 (ibid) came to be considered by the learned Bench of this Court in Feroze Khan and 3 others v. Ahmad Yar 1992 MLD 1570 that section 20 of the Punjab Pre-emption Act, 1991, embodied a rule of Islamic law, that in case of plurality of persons having equal right of Shuffa, the property would be distributed per capita among them equally. As the pre-emptors were four in number poised against a sole vendee, they would be entitled to 4/5 share of the property sold leaving the vendee with 1/5th share in it. Above rule for distribution of the pre-emptive property between equally classed pre-emptors and the vendee found recognition in a celebrated judgment of Allahabad High Court in case of Amir Hassan v. Rahim Bakhsh and others ILR 199 All. 466 . Some observations in Sarfraz Khan v. Nimatullah Khan 2002 SCMR 751 which appear in paragraph 5 of the judgment are also useful and are reproduced Coming to the equal right claimed by the vendee, we have no doubt in our mind that joint right of pre-emption can be exercised by a person, by a class or group of persons either jointly or severally as provided under section 8 of the N.-W.F.P. Pre-emption Act, 1987. We are also mindful of the fact that under section 9 of the Act, where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares . It may be mentioned that identical provisions exist in the N.-W.F.P. Pre-emption Act, 1987. In Muhammad Yousaf v. Ghulam Muhammad and 5 others 2002 YLR 3764, a Division Bench of this Court observed that the total effort in enacting the Punjab Pre-emption Act, 1991 was to adopt the Islamic Principles on the law of pre-emption, therefore, one has to look to the Islamic notion of pre-emption and it is not difficult to find that under the Islamic Law where the right of the pre-emptors and that of the vendees is adjudged to be equal, the property or the land forming subject-matter of the sale is to be shared by them equally. The Legislature in its wisdom, therefore, incorporated this principle in section 20 of the Punjab pre-emption Act so as to incorporate the complete intention of the principle of Islamic Law of Pre-emption. Need we refer to the preamble of the Ordinance which reads as follows:-- Whereas it is expedient to re-enact the existing law relating to pre-emption so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur an and Sunnah . The reference to the preamble as aforenoted would clinch the arguments being raised by the learned counsel for the appellant. The above-said aspect apart, even otherwise it is to be noted that the total law of pre-emption based on the principle of warding off a stranger in the vicinity and a Mohallah of a Town and land in the village. It is not too far-fetched to understand that where the pre-emptor and the vendee are found to be equally placed, the dismissal of the suit as was done under the old Act was not considered to be proper for it would strengthen the vendee and weaken the pre-emptor in the sense that latter would not get any share from the sale. After all it is the choice of the pre-emptor to accept any stranger and he may not file any suit but if he chooses to file a suit, and is ultimately found that the vendee against whom such a suit is filed is also equally placed, the land of the vendor must be equally shared so that the pre-emptor and the vendee may use such land for any further exercise of right for the right of pre-emption arises out of the land that he owns. Similar was the view taken in Muhammad Hayat v. Faiz Ali and another 2002 MLD

938. Thus, the provisions of sections 19 and 20 of the Act IX of 1991 have been enacted to bring the law on the subject in conformity with the Injunctions of Qur an and Sunnah.

7. It is established rule of interpretation that while construing a statutory provision each word is to be given meaning and is not to be rendered as redundant. While doing so, however, the language is not to be twisted into a meaning which it cannot bear or results in irrationality or absurdity. Thus the only inescapable and reasonable and fair meaning of the phrase is that the claim for pre-emption shall be made on the whole property pre-emptible . It does not admit of any other meaning except that the pre-emptor is required to sue for the whole property to which his right of pre-emption extends. Such construction of subsection (2) of section 19 read in conjunction with the provisions of section 20 of the Act, would be consistent with the principle discernible from the above cited precedents also. Any other meaning to this clause would give rise to anomalies as for instance that though the right of pre-emption of a plaintiff may extend to a part of the property, yet he may be compelled to sue for the whole of the property and pay court-fee and make deposit of price qua the whole of it. Such a construction will produce absurd and unjust consequences. Suffice it to observe that irrationality and absurdity cannot be attributed to the legislature.

8. Thus, a plaintiff in a pre-emption suit is bound to sue for the whole of the property to which his right of pre-emption extends. He cannot be choosy and cannot break nor he can make the property divisible in case when his right of pre-emption extends to whole of it. The principle of partial pre-emption can only be invoked if he does not sue for whole of the property to which his right of pre-emption extends. In the present case, the respondent-pre-emptor had sued for the whole of the property pre-emptible as envisaged by subsection (2) of section

19. His suit was not hit by the principle of partial pre-emption. The learned trial Court had thus erred in non-suiting the respondent-plaintiff by rejecting his plaint which order has rightly been reversed by the Appellate Court. It may be observed that in the application moved by the petitioner-defendant, under Order VII, Rule 11, C.P.C., for rejection of the plaint, the question of limitation was also raised that the suit of the respondent-plaintiff was barred by limitation. That aspect was not touched by the learned trial Court and the rejection of the plaint was ordered by invoking the principle of partial pre-emption. Suffice it to observe that the question of limitation would be open for decision by the Trial Court in the course of the trial of the suit. In view of the above, the appeal is without merit, it is dismissed accordingly with no order as to costs. M.B.A./M-872/L Appeal dismissed.