MST. SOOBAN BIBI AND 3 OTHERS Versus MST. KHATOON AND 3 OTHERS

This judgment shall dispose of Civil Revisions Nos.238 and 239 of 2000. It may be relevant to mention here that these civil revisions arise out of two suits for pre-emption which were tried separately and disposed of by the Courts below by rendering separate judgments yet common questions of fact and law are involved therein, therefore, they are being disposed of by this common judgment. Needless to add here that the civil revisions afore noted had not been admitted to regular hearing but as the parties are fully represented and their learned counsel have. been heard, therefore, these petitions are being disposed of as Pakka cases.

2. Both the civil revisions noted above are directed against the judgment and decrees dated 24-5-1999 passed by the learned Additional District Judge, Chunian, whereby the appeals of the petitioners were partly accepted yet the judgments and decrees dated 5-5-1994 passed by learned Civil Judge, Chunian were affirmed, resultantly, the suits of the petitioner seeking possession through pre-emption were dismissed on the ground of non-performance of Talabs.

3. The relevant facts are that sales of two parcels of land, effected through Mutation No.1996 attested on 11-1-1986 in favour of the respondents were sought to be pre-empted by the predecessor-in-interest of the petitioners by filing two suits on his avowed right of being Shafi Khalit, Shaft Sharik and Shafi Jar with the assertion that he had performed Taibs in accordance with Islamic Law of Pre-emption, therefore, he is entitled to be substituted in place of the vendees i.e. respondents herein. It would be pertinent to mention here that the suits were filed on 8-1-1987 i.e. during the interregnum when the Punjab Pre-emption Act, 1913 had already been taken off the statute book and neither any Ordinance nor any Act dealing with the right of pre-emption was in field, therefore, the two suits as filed shall be governed by the classic Islamic Law. It may also be relevant to mention here that the predecessor-in-interest of the petitioner died during the pendency of the suits whereafter the same were prosecuted by his legal representatives.

4. The suits were contested by the respondents inter alia on the ground that the same are barred by limitation and that the petitioners are estopped by their conduct to file the same. The assertion that predecessor-in-interest of the petitioners had superior right of pre-emption and he had performed Talbs in accordance with Islamic Law of Pre-emption were denied. The court-fee was also alleged to be deficient while the respondents claimed compensation for the improvements effected on the land in dispute.

The suits were hectically contested between the parties and since the original pre-emptor i.e. predecessor-in-interest of the petitioners had died during the pendency of the suits and as the applications for bringing on record his legal representatives were filed beyond 90 days, therefore, the same were dismissed. The appeals filed against the above said judgments and decrees were also dismissed, resultantly the matter was taken to this Court where the parties agreed that the same be remitted to the learned trial Court for their decision on merits.

5. It appears that the learned trial Court having framed 8 issues in one case (Suit No.23/1) and five issues in the other case (Suit No.26/1) had omitted to frame issue in regard to performance of Talbs in the earlier mentioned case, while issues of limitation and non-performance of Talbs were not framed in the latter mentioned case with the result that at the time of pronouncement of judgments, the learned trial Court having noted the omission called upon the parties for further arguments in the two cases. It, was on 4-5-1994 that counsel for the parties having been apprised of the omission afore noted proceeded to record their statements in the two suits thereby agreeing that in the suit (Suit No.23/ 1) issue as, to performance of Talbs be framed and that they would rely on the evidence already produced, resultantly Issue No.7-A was added in the issues already framed in the said suit as follows:--

7-A. Whether the plaintiffs have fulfilled the Islamic demand of Talbs in accordance with law OPP.

Simultaneously in the other suit (Suit No.26/ 1) a similar statement was recorded with the result that following two issues were added:--

4-A. Whether the suit is time-barred? OPD

4-B. Whether the plaintiffs have fulfilled the Islamic demands of Taibs in accordance with law'? OPP

The statement of learned counsel for the parties having been recorded and appropriate orders passed thereon, the learned trial Court having appreciated the evidence on the record as also discussed the same dismissed the suits of the petitioners vide its judgments and decrees dated 5-5-1984 mainly on the ground of limitation and non-performance of Talbs. Aggrieved there from the petitioners tiled appeals which were partly accepted (on. the ground of limitation) yet the judgments and decrees of the learned trial Court were affirmed on the ground of non-performance of Talbs.

6. The above said decrees of dismissal have been assailed in the present revision petitions.

7. At the limine stage, it was argued by the learned counsel for the petitioners that the issue as to performance of Talbs in one case and performance of Talbs and limitation in the other case were framed by the learned trial Court at the time of pronouncing the judgment and although the issue of limitation had been decided in their favour, yet the issue as to performance of Talbs had been decided against the petitioners without granting any opportunity of leading evidence tit that regard resultantly the record of the case was requisitioned and perused. It revealed, there from that the learned counsel for the petitioners was also labouring under some mis apprehension about the manner in which the issue was framed arid adjudicated upon for the learned trial Court having noted .the omission had called upon the parties so as to apprise them of the omission, who in turn had made statements that the issues be framed and that, they did not wish to produce evidence, as according to them they would rely on .the evidence already recorded in the case. It was then that issues were framed and the matter was decided. Confronted therewith, learned counsel for the petitioners sought time to argue the case. On the adjourned hearing, learned counsel for the respondents also appeared and requested that the matter be heard finally. Since the case was fully represented, therefore, the same has been heard on merits.

8. Learned counsel for the petitioners has drawn my attention to the orders dated 4-5-1994 in which the statements of the learned counsel appearing for the parties were recorded to contend that none of the petitioners was in attendance while the learned counsel appearing on their behalf made a statement which may not be binding on them. He relied on Muhammad Bakhsh and 3 others v. Umar and 3 others (PLD 1952 Lahore 307) for the proposition that an admission by a lawyer on a question of law or even on a mixed question of law and facts is not binding on his client. He then referred to Messrs Riazur Rehman & Co. v. Province of Punjab and another (PLD 1984 Lahore 551), Messrs Eastern Steels v. National Shipping Corporation (1984 CLC 2778), Seith Shivrattan G. Mohatta and another v. Mohammadi Steampship Co. Limited (PLD 1965 SC 669), Rafiq and another v. Munshilal and another (1982 PSC 886) and Samar Gul v. Central Government and others (PLD 1986 SC 1) to contend that the petitioners should not be made to suffer for the negligence, omission or unauthorised act of their counsel and that in any case the Court was empowered to look into the plaint and to grant relief to the petitioners, which was allowable under the circumstances.

Learned counsel for the respondents, on the other hand, maintained that the authority of an Advocate/lawyer emanates from the "Wakalat Nama", therefore, the statement of the lawyer is very much binding upon the client. He relied on Noor Jahan v. Azmat Hussain Farooqi and another (1992 SCMR 876) for the proposition that Advocate having power to compromise can enter into settlement with regard to subject-matter of the suit in respect of which authority has been given. Reliance was also placed on Talha Safdar and another v. Bashir Ahmad and others (1997 CLC 601, Muneer Akhtar v. Mst. Shahnaz. Begum (2000 CLC 1743). He then argued that the parties having failed to claim issue during the trial could not be heard to say that the judgment is vitiated because of non-framing of the issues. Reliance was placed on Laloo and another v. Ghulaman (2000 SCMR 1055), Fazay Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) and Kaura and others v. Allah Ditta and others (2000 CLC 1018).

Apart from the above-noted submissions, learned counsel also argued the matter from another angle which remained unattended before the two Courts below in that it was submitted that the suits were tiled during the interregnum when Punjab Pre-emption Act, 1913 had already been taken off the statute book and before any law in regard to pre-emption occupied the field meaning thereby that the suits were filed under the classic Islamic Law. It was then argued that the concept of pre-emption under the Islamic Law does not permit a suit to be continued when the pre-emptor dies before the decree for the right to sue extinguishes after the death of pre-emptor. Reliance .was also placed on Malik Ghulam Nabi and others v. Member-III. Board of Revenue and 5 others (PLD 1990 SC 1043) wherein the rule laid down is two-fold. It was primarily held that the plaintiff himself had based the suit for pre-emption on the principle of Muhammadan Law, therefore, it could not be contended that the suit could be decided otherwise than on the said principle. It was further ruled that death of pre-emptor during the pendency of suit extinguishes his right to pre-empt and the suit cannot be prosecuted by the heirs of the deceased. In support of the above said argument, learned counsel referred to "The Hedaya", i.e. famous commentary on the Muslim Laws, "Fatawa-i-Alamgiri" "Durul Mukhtar" and "Bahar-e- Shariat" by Maulana Amjad Ali.

9. Since the question was purely legal and was based on an admitted position of fact on the record i.e. that the pre-emptor had died during the pendency of the suits, therefore, the same were allowed to be raised for after all if that be the case, the total proceedings may become an exercise in futility.

Learned counsel for the petitioner was called upon to rebut the arguments afore-noted. He, however, failed to rebut the same by presenting any precedent or rule from the Islamic Law.

10. It is a matter of record that non-framing of issues was noted by the learned trial Court at the time of pronouncement of judgment with the result that he called upon the parties to further argue the matter. Learned counsel for the parties having been apprised of the omission, proceeded to record their statement thereby agreeing that the issues be framed and that they would rely on the evidence already recorded. The question which falls for determination is to the effect that as to whether the said statement is binding on the parties for it was argued by the learned counsel for the petitioners that petitioners were not in attendance on the date when the said statement was made nor it is shown on the record that any authority to that effect was given by the petitioners. To resolve the above said question a reference may be made to "Wakalat Nama" executed by the petitioners in favour of their, lawyers for eminently their, authority to prosecute the suit or defend the same emanates from the said "Wakalat Nama". In the said "Wakalat Nama", a power is given to make any and every statement which may be reproduced for understanding the import thereof.

The practice of engaging lawyers has been adopted for the reason that the litigant public is not well-versed in the technicalities of law, therefore, the services of the expert in field are hired for prosecuting and defending a cause on their behalf. The lawyers so engaged are conferred two-fold authorities i.e. one in relation to the proceedings in Court and the other in relation to right of the parties in relation to the cause being prosecuted or defended. The first-mentioned authority is inherent and flows from the "Wakalat Nanma while the second authority aforementioned is also based upon the "Wakalat Nama", but It times lawyers have taken care and has exercised caution in making an admission as to question of fact or law: The question herein being relatable to the proceedings was very much within the competence of the lawyer for he knew fully well that he has produced evidence on the subject, therefore, he made a statement that issues be framed and that he would rely on the evidence already recorded. Again the authority given to the lawyer is manifest from the wording of the "Wakalat Nama" and no escape can be made there from. It is recorded therein that he could make any or ever statement in relation to the subject-matter of the suit. The reliance of learned counsel for the petitioner on the judgment of Muhammad Bakhsh and 3 others v. Umar and 3 others (PLD 1952 Lahore 307) may not be of much help for the rule therein is, relatable to an admission by a lawyer on a question of law or on a -mixed question of law and facts. It is so commonly known that an admission on the question of law is not at all binding because if some lawyer agrees to a proposition which is against the law, no estoppel is created for it is well settled that there is no estoppel against the law. Again on a mixed question of fact and law the admission would not be binding on his client. The statement made by the learned counsel for the petitioner was in regard to procedural matter therefore, the ratio of the said case would not be applicable in the facts and circumstances of the present case. As far the other judgments relied by the learned counsel for the petitioners, suffice it to observe here that all these cases were of dismissal for non-prosecution or ex. parte proceedings and the counsel were responsible for the dismissal or ex parte proceeding independent of the conduct of the suitor or the defendant. In such cases it was ruled that party should not suffer for the negligence of the lawyers. Again the principle is not attracted in the facts and circumstances of the. case for the conduct of a lawyer in his independent capacity as such was under consideration and although the lawyer had been authorised to act on behalf of the litigant, yet it was ruled that, they should not be made to suffer because of his conduct. The rule cannot be extended to a case where the authority .had been given by a client to the lawyer to make any statement in relation to the proceedings of the suit for if such an interpretation is made it would lead to anomalous and absurd results, because it would be very easy for a litigant to disown any statement of his lawyer if and when it suits his convenience. The principle that the authority of an Advocate flows and emanates from the "Wakalat Nama" is well-established and should normally be adhered to. The reliance of the learned counsel for the respondents on the cases of Noor Jahan v. Azmat Hussain Farooqi and another (1992 SCMR 876), Talha Safdar and another v. Bashir Ahmad and others (1997 CLC 601) and Muneer Akhtar v. Mst. Shahnaz Begum (2000 CLC 1743) is very apt and supports the age' old principle in regard to the authority of a lawyer to make any and every statement in relation to the proceedings. It is, thus, obvious that the statement made by the counsel for the petitioner on 4-5-1994 was fully authorised even if none of the petitioners was in attendance on the said date.

11. Coming to the performance of Talbs as asserted by the predecessor -in-interest of the petitioner, it would be seen that although the impugned sale was trade on 11-1-1986 yet the suit was instituted on 8-1-1987 when Punjab Pre-Emption Act, 1913 had already been taken off the statute book and there was no codified law available for enforcing the right of pre-emption, therefore, the same shall be continued to be governed by Islamic Law, even if subsequently the codified law occupied the field. It would be pertinent to mention here that the suits were earlier dismissed on 22-2-1989 and the appeals tiled against the decrees of dismissal were also dismissed with the result that the matter was taken to this Court in Civil Revisions Nos.481 and 482 of 1990 which were decided with the consent of the parties by my learned brother Mian Allah Nawaz, J. (as he then was) vide his judgment dated 5-5-1993 whereby the cases were remitted to the learned trial Court for their decision afresh. By the time that the above-said judgment was rendered, Punjab Pre-emption Ordinance, 1990 (Ordinance No. XVIII of 19901 had been promulgated which contained a saving clause as envisaged by section 36 of the said Ordinance whereby it was ordained that all decrees, judgments and orders dismissing the suit of pre-emption instituted or pending during the period from 1st August, 1986 and 20th March, 1990 in which the right of pre-emption was claimed as is available under the said Ordinance shall be of no legal effect and the said suits on the application made by aggrieved persons within 60 days of the commencement of the said Ordinance shall subject to subsection (2) be decided afresh according to the provisions thereof. By the provisions of subsection (2), limitation was also curtailed from one year to 240 days with the rider that pre-emptor shall succeed if he had made Talbs in the presence of two witnesses. The said Ordinance was replaced by Ordinance No. XXI of 1990 which was further replaced by Ordinance, NO.XXVII of 1990 wherein the period of limitation was again ordained to be one year. This Ordinance was also replaced by Ordinance No.IX of 1991 and the saving clause continued. The said Ordinance was replaced by Punjab Pre-emption Act, 1991 (Act No.IX of 1991) which also ordained that the limitation for tiling a suit for pre-emption shall be, one year. The above said provision was, however, declared to be repugnant to the Injunctions of Islam in the case titled Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1). The instant case is however, one of exception for the cause itself was kept alive by the parties to the suit as the matter was taken to this Court and was remitted to the learned trial Court for its decision afresh. Since the suit had been tiled under classic Islamic Law, therefore, notwithstanding the provisions contained in section 35 of the Ordinance and Punjab Pre-emption Act, 1991, provisions as to performance of Talbs under the classic Islamic Law are to be considered for the performance of deciding the controversy between the parties. As far performance of Talb-e-Ishhad is concerned, it would be noted that the said Talb, though, made by the pre-emptor but was not so made in accordance with Islamic Law. The Talb-e-Ishhad under the Islamic Law has been ordained to be made as follows:-

14. Talb-e-Ishhad shall be made with the least possible delay--

(i) in the presence of the witnesses called upon to bear witness to it;

(ii) on the premises of subject of pre-emption or in the presence of the vendor provided he is in possession of the property or before the vendee.

It is also necessary to refer to Talb-e-Muwathibat having been duly made, Talb-e-Ishhad may be made by duly appointed agent.

12. It is in the evidence of the petitioners that Talb-e-Ishhad was made to only one of the vendees namely Mst. Soban and to no other respondents. Again the petitioners produced only one witness namely Nawab to prove Talb-e-Ishhad which is insufficient as per requirement of Islamic Law. Obviously, the Talbs were not performed in accordance with law applicable in the facts and circumstances of the case, therefore, the findings of the learned Courts below on Issue No.7-A in regard to performance of Talbs are affirmed.

13. This brings me to the last question that the pre-emptor having died during the pendency of the suit and before any decree could be passed in his favour, his right to pre-empt the sale extinguished, it may be relevant to first see as to whether codified law or Islamic Law of pre-emption could be applicable in the facts and circumstances of the case. As observed earlier, the suits were filed at a time when no codified law was available on the subject of pre-emption and the suits as filed were sought to be maintained under the Islamic Law, therefore, it shall be continued to be governed by the same law with all its incidents in spite of the fact that certain Ordinances relating to pre-emption laws and finally the Punjab Pre-emption Act, 1990 occupied the field. It has been held in the case of Malik Ghulam Nabi and others v. Member-III, Board of Revenue and 5 others (PLD 1990 SC 1043) that when the plaintiff himself had based the suit for pre-emption on the principles of Muhammadan Law, it could not be contended that the suit could be decided otherwise than on the said principle. Respectfully following the rule I hold accordingly. The other question has also been answered in the case of Malik Ghulam Nabi and others noted supra for it is also ruled that the death of pre emptor during the pendency of the suit extinguishes his right to pre-empt and the suit cannot be prosecuted by the heirs of the deceased. Learned counsel for the respondents very aptly relied on the famous commentary is on the Islamic Law such as "Hedaya" by Charles Hamilton, compilation of "Fatawa-i-Alamgiri" "Durul Mukhtar" and "Bahar-e-Shariat" by Maulan, Amjad Ali for it is ordained in all the commentaries aforenoted that the death of pre-emptor extinguishes his right and that right to pre-empt does not devolve upon his heirs. The contra view of "Shiahs" and "Shahs" have also been referred to but the rationale for following the view as expounded by Hanafi School of Thought may be reproduced below for the sake of its wisdom. Charles Hamilton in his famous book "Hedaya" observes as under:--

"By the death of Shafee before the Kazee's decree.- -If the Shafee dies, his right of Shaffa becomes extinct. Shafei maintains that his right of Shaffa is hereditary.--The compiler of the Hedaya remarks that this difference of opinion obtains only where the Shafee dies after the sale, but previous to the Kazcc decreeing him the Shaffa: for if he dies after the Kazee has decreed his Shaffa, without having paid the price, or obtained possession of the property sold, his right devolves to his heirs, who become liable for the price. The argument of our doctor upon the point in which they differ from Shafei is, that the death of the Shafee extinguished his right in the property from which he derived his privilege of Shaffa; and the property did not devolve to his heirs until after the sale. Besides, it is an express condition of Shaffa, that a man be firmly possessed of the property from which he derives his right of Shaffa at the time when the subject of it is sold, a condition which does not hold on the part of the heirs: It is, moreover, a condition that the property of the Shafee remains firth until the decree of the Kazee be passed; and as this does not hold on the part of the deceased Shafee, the Shaffe is therefore, not established with respect to any one of his descendants, because of the failure of its conditions:"

Syed Amir Ali has not gone any further than quoting, the two views as under:--

"According to the Hanafi Law the right of pre-emption is a personal right and does not survive to the pre-emptor's heirs. Of course, if they are themselves entitled to claim the right they stand on a different footing.

Thus the right of pre-emption is rendered void by operation of law when the pre-emptor dies after making the necessary demands, but before he has taken over the property which forms the subject- matter of the dispute, or before lie has obtained a decree therefore from the Court. (2) But it is not rendered void by the death of the purchaser and the pre-emptor can, therefore assert his right and taken the property from, his heirs.

According to the Shafeis and the Shiahs the right of pre-emption is heritable right and devolve upon the heirs of the pre-emptor."

Similarly the other compiler of classic law of Islam appears to have taken the same view as that narrated by Charles Hamilton in Hedaya, which has been ultimately approved by the Honourable Supreme Court of Pakistan in the case of Malik Ghulam Nabi and others noted supra. Needless to add that there is age old presumption that every Muslim is presumed to be Hanafi unless proved otherwise. No such exception has been pleaded or proved in the case.

It is manifest from the discussion noted above that the pre-emptor having died before any decree could be passed in his favour, his right to pre empt extinguished for it was not heritable under the Islamic Law, therefore, the total exercise of taking of this case twice to this Court was absolutely futile. The suit as prosecuted by the heirs of the said pre-emptor right from the stage prior to the decree was an exercise in futility which should have been clinched on the death of pre-emptor.

14. In result these petitions are dismissed with costs.

Q. M.H./M.A.K./S-198/L Petitions dismissed.