MUHAMMAD ZAHID PERVAIZ vs MUHAMMAD SHAFQAT IQBAL

ORDER

' MIAN SAQIB NISAR, J.---The petitioner is a plaintiff of the pre-emption suit filed against the respondent; along with suit, he had applied for the grant of temporary injunction seeking restraint against the respondent from changing the nature of the suit property; the said application has been rejected by the learned trial Court vide order dated 21-6-2006 and the appeal of the petitioner has also failed on 22-12-2006.

2. Learned counsel for the petitioner contends that both the courts below have held that the application under Order XXXIX, Rules 1 and 2, C.P.C. Is not competent and that the petitioner should have filed an application under section 151, C.P.C. But this is absolutely misconceived.

3. Heard. About the view of the two courts below that in a suit for the pre-emption, a temporary injunction cannot be granted under Order XXXIX, Rules 1 and 2, C.P.C. And the petitioner should have moved an application under section 151, C.P.C. Suffice it to say that wrong mentioning of the correct provision of law, does not disentitle the litigation for the appropriate relief available to him, because it is the duty of the court to apply the correct law and to grant the proper relief.

4. In the pre-emption suits, I am of the view that the injunctive order should not be lightly granted because the vendee/defendant in such cases is the absolute and exclusive owner of the property till the time the decree for the pre-emption is passed in favour of a pre-emptor. Without going into the question, whether the right of pre-emption is predatory or otherwise, but it is settled, that the decree for the pre-emption under the Act, 1991 is subject to a very important proof about the making of two Talbs about which, it cannot be prima facie ascertained, whether the Talbs have been made or otherwise, especially this shall be true for Talb-e-Muwathibat. Thus, even if the pre- emptor has prima facie established his right of pre-emption on the record, till the owner of the property cannot be put under restraint to use his property, which may tantamount to the breach of his fundamental right as enshrined by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. The injunction, therefore, should not be ordinarily granted regarding the suit property which is a bare land, and the claim of the plaintiff/pre-emptor is to simply restrain the vendee/defendant from the improvement of his property till the final decision of the case, which may take years for its final adjudication. Obviously, the development and the improvement of the land made by the vendee during the pendency of the case shall be at his own risk and cost and he shall not be entitled to any compensation for the construction/development etc. From the pre-emptor made after the institution of the suit.

5. However, where a suit for the pre-emption has been filed with regard to any property having a superstructure, which is a part of the sale and the vendee intends to demolish the superstructure in order to defeat the right of substitution of the pre-emptor, may be the Court, on the basis of the facts of that case, is inclined to grant the injunction. But, in the instant case, this is not the position, and the petitioner only wants to prevent the respondent/vendee from improving his property by raising the construction. When questioned in this behalf, Mr. S.M. Masud, learned counsel for the petitioner, states that in this manner, the access to the petitioner's land shall be so what hindered.

This is not the case of the petitioner even in his application and he has also not been able to prove any right of easement from the suit-land or any other legal obligation on part of the respondent not to raise the construction over the property which he has validly purchased.

' For the foregoing reasons, I am not inclined to interfere in the impugned orders. The revision petition thus, has no merits and is hereby dismissed.