MUHAMMAD SIDDIQUE Versus ZAWAR HUSSAIN ABIDI

1. MUHAMMAD GUL, J .-----This appeal by special leave arises out of a suit for the pre-emption of land measuring 48 kanals 18 marlas in village Pakha' Ghulam, Tehsil and District Peshawar. By registered sale deed dated 14-11-1967 the land was sold to Haji Abdul Hakim Khan, respondent 9 harein for Rs. 56,000 and there is no dispute as to that. Three persons, Muhammad Siddique, Muhammad Akram, the two appellants herein and Abdul Latif respondent 10 herein jointly sued for the pre-emption of the sale. The first two named, it is conceded, have superior right of pre-emption as against the vendee. Abdul Latif however, did not have such right and therefore applied to the trial Court for withdrawal from the suit. But the trial Court refused his application. On revision he was allowed by the High Court to withdraw from the suit vide order dated 13-2-1970 while the suit was still pending in the trial Court. Notwithstanding the withdrawal of Abdul Latif from the suit, the Courts below and the High Court have non-suited the two appellants on the ground that they having joined a "stranger" for the purpose of pre-emption suit, were hit by the provisions of section 18 of the N.-W. F. P. Pre-emption Act, 1950 (Act XIV of 1950) and therefore lost their right of pre-emption. The section reads;

2. "Where a person having a right of pre-emption sues jointly a person not having such right, he shall lose his right ; and where a pre-emptor of a 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."

3. In support of the above view, the High Court followed a Division Bench's case of the Allababad High Court reported as Sheo Balak Chaudhart v. Ram Saran Chaudhry (A I R 1933 All. 788). That case proceeded on the basis of the provisions of section 21 of the Agra Pre-emption Act, 1922 which will be noticed later in the sequal.

4. Leave to appeal was granted to consider whether the view taken by -the High Court and the Courts below proceeded on the correct interpretation of section 28 of the N.-W.F.P. Pre-emption Act having regard to the decision of this Court in Mehr Allah Ditta v. Muhammad Ali (P L D 1972 S C 59).

5. The learned Judges of the High Court while dismissing the appellants' appeal before them did not notice this Court's judgment in the case of Mehr Allah Ditta. This was perhaps because the judgment had not been published by that time. Therefore, the learned Judges in the Court based themselves entirely on the above-mentioned Allahabad case. It was held in that case that a pre-emptor having superior right joining in a suit one having an inferior right loses his superior right and that subsequent withdrawal of the person having inferior right does not restore the former to his superior right. This case followed a string of earlier cases of that High Court beginning with Bhawani v. Damru (I L R 1883 All. 197) in all of which a pre-emptor joining a stranger in a preemption suit had been considered fatal to the suit. In almost all these cases, it was laid down that the defect in the suit was incurable in spite of Order 1, rule 10, C.P.C. The principle laid down in the Allahabad High Court's cases was not confined to those falling under section 21 of Agra Pre-emption Act but was extended to cases falling under Muslim Law of Pre-emption. See monograph 241 of Mulla's Principles of Muhammadan Law, 13th Edition at page 226 and the cases noticed at the foot of the page. The monograph reads;----

6. "If a plaintiff who has 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 . . . ."

7. Mr. S. M. Zafar, learned counsel for the appellants on the other hand strongly relied on the case of Mehr Allah Ditta v. Muhammad Ali which incidentally approved the view taken earlier by a learned Judge of the late High Court of West Pakistan fn Raja and others v. Hussain and others (P L D 1957 Lab. 52). Both these cases under the Punjab Pre-emption Act, 1913 (Act I of 191.3) in both of which the Allahabad cases to the contrary were noticed. It was laid down in these two cases that the joinder of a stranger as co-plaintiff in a suit for pre-emption is a curable defect and that the suit will be maintainable in the name of the superior pre-emptor if during the pendency of the suit the stranger is either struck off from the list of the plaintiffs or withdraws from the suit. It was observed that the defect was mere "procedural" which could be rectified by amendment of the plaint under Order I, rule 10, C.P.C. and there was no reason why that remedial provision of the Code should not apply to pre-emption suits In the case of Mehr Allah Ditta v. Muhammad Ali the principle of stare decisis was also invoked because in the Punjab since the decision by the former Punjab Chief Court about 80 years ago in Sharaf and another v. Pir Bakhsh and another (83 P R 1893) the consistent view prevailing in the Province has been that the right of the plaintiff pre-emptor is not "altogether lost" if in the suit to enforce his right of pre-emption he joins with a stranger but that the defect can be removed during the pendency of suit by amending the plaint and striking off or withdrawal of the stranger from the suit. A long array of cases beginning from Sharaf v. Pir Bakhsh in 1893. down to the case of Raja v. Hussain in 1957 have been referred to. But it is important to observe that all these cases were under the Punjab Pre-emption Act or its prodecessor Act which for the relevant purpose are materially different from the N-W.F.P. Pre-emption Act. The ratio decidendi in the case of Mehr Allah Ditta and the reasons why a different view has prevailed in the Punjab than that in the Allahabad cases, has been brought out succinctly in the following passage----

8. "It will be further noticed that the decisions of the Allahabad High Court have also been recognised by the Legislature in the Agra Pre-emption Act (No. XI of 1922). Section 21 of that act provides as under;

9. 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 wish a pre-emptor of a lower class he shall have no higher right than the person, with whom he so sues'.

10. 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."

11. Indeed, if I may say so with respect, this excerpt provides the key to the question which has been debated at length in the instant case.

12. Consequently, I find force in the argument of Mr. Muhammad Sardar Khan, learned counsel for the vendee, that the Punjab cases were decided differently because in the Punjab Pre-emption Act there was no provision corresponding to section 18 of the ,N.-W.F.P. Pre-emption Act which is in sari materia with section 21 of the Agra Pre-emption Act. It can scarcely be controverted that speaking generally and in this case particularly right of pre-emption is a creature of the statute it must be distinguished from a primary or a common law right which could exist independently of the statute say for instance the right to hold and enjoy one's property without any let or hindrance from his neighbour. That being so, the right of :pre-emption can be enforced subject to the conditions and limitations laid .down in the statute creating such right. Indeed this is underlined in section 6 of the N-W.F.P. Act: it reads:---

13. "A right of pre-emption shall exist in respect of agricultural land, village immovable property and urban immovable property subject to the provisions and limitations contained in this Act."

14. This gives mandatory effect to the requirement of section 21 ibid.

15. The question can be viewed in another perspective. The N-W.F.P. Pre-emption Act is a local Act of substantative character in that it creates certain rights in favour of certain categories of persons and makes these rights enforceable subject to the conditions and limitations laid down in the Act. The question therefore is whether Order I, rule 10, C.P.C. which has invariably been invoked in the Punjab cases to rectify the defect in the ,constitution of the suit could similarly , be invoked in the cases decided g under the N-W.F.P. Pre-emption Act in face of the provisions of sections 6 and 18 set out above? The Code of Civil Procedure on the other hand is a procedural law. Subsection (1) of section 4 of the Code reads;----

16. "In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise effect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."

17. It is no doubt true that whenever any special jurisdiction is created or a power is conferred upon a civil Court then in the absence of any provision to the contrary, the provisions of the Code will apply to such proceedings. But it is equally well settled that in the case of any conic between the provisions of the Code and any local law the latter will override any provisions to the contrary contained in the Code. The provisions of Order 1 rule 10, C.P.C. are plainly derogatory to the require ments of sections 6 and 18 of the N-W.F.P. Pre-emption Act, which as pointed out above are mandatory. Therefore, section 18 of the latter Act will override the provisions of Order 1, rule 10, C.P.C. On the other hand, the Punjab Pre-emption Act does not contain any provision corresponding to section 6 and 18 of the N.-W.F.P. Pre-emption Act and therefore in the/ Punjab the Courts were not inhibited from invoking Order 1, rule 10 to' remedy the defect in the constitution of the pre-emption suits. This explains is the reasons underlying the two views bearing on the same law point.

18. Mr. S. M. Zafar however, pleaded for an extended interpretation of the expression "sues jointly" in section 18 of the N.-W.F.P. Pre-emption Act and submitted that this expression should be read in the sense sues jointly to the end that is to say until the ultimate decision in the suit. Learned counsel stressed that the consequence of violation of section 18 of the N.-W.F.P. Act being penal, the Court should incline to a liberal interpretation, of the section for the avoidance of hardship a strict application of the section would entail. The word "sues" according to its ordinary cannotation means institutes and according to rule 10, Order IV, C.P.C. a suit is instituted by the presentment of the plaint to a Court of competent jurisdiction. Therefore, the suit is instituted as soon as the plaint is presented and it is accepted by the presiding officer any defect notwithstanding. Moreover, the argument overlooks the fact, that a pre-emptor plaintiff sues to enforce, what after all is a burdensome right. The Courts have generally inclined to construe strictly the provision of pre-emption law against the pre-emptor, with a view to allowing the vendee to retain the fruits of private sale in his favour rather than to help an interloper, who seeks to divest the vendee of what indisputably has become his property.

19. Be that as it may the instant case falls to be decided with reference to the provisions of the N-W.F.P. Pre-emption Act which for the relevent purpose is at variance with the Punjab Pre-emption Act. A fortiori the case of Mehr Allah Ditta which was decided under the Punjab Pre-emption Act does not have any bearing on the instant case.

20. For the foregoing reasons I am of the view that the case was rightly decided by the High Court and the Courts below, and the appeal should be dismissed. Because of the divergence of judicial opinion on the point involved in the appeal, I would leave the parties to bear their own costs.

21. MUHAMMAD AFZAL CHEEMA, J .-I have had the advantage of going through the judgment proposed to be delivered by my learned brother Muhammad Gul, J. but regret to observe with utmost respect that I have not been able to agree with his Lordship.

22. The facts have been elaborately set out in the judgment of my learned brother and need not be recapitulated in detail. The short question involved in the matter, however, is as to whether the admittedly superior right of pre-emption of Muhammad Siddiq and Muhammad Akram appellants herein stood frustrated for having joined in the suit their third brother Haji Abdul Hakim Khan respondent No. 9, who was a stranger, notwith standing the fact that the latter was allowed to withdraw by the High Court during the pendency of the suit, after the trial Court had dismissed his application for withdrawal. The relevant provision relating to loss of right by joining a stranger is contained in section 18 of the N: W.F.P. Pre emption Act of 1950. The Courts below including the High Court ,consistently answered the point in the affirmative and therefore, non-suited the appellants on the interpretation placed by them on section 18 of the N.W.F.P. Pre-emption Act. 1950. Leave to appeal was granted to consider as to whether the view taken by the Courts below proceeded on a correct interpretation of this provision which apparently ran counter to the decision of this Court in Mehr Allah Ditta and another v. Muhammad Ali .and another (PLD 1972SC59).

23. Section 18 of the N.-W.F.P. Pre-emption Act, 1950 reads as follows ;

24. "Where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right ; and where a pre-emptor of a 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."

25. Had it been a case of a stranger having been deliberately joined by the plaintiffs/appellants with their eyes open and persisted to retain him as a co-plaintiff with them throughout the proceedings before the trial Court, the position would be quite simple and free from controversy inasmuch as the suit would be directly hit by the above provision. But the withdrawal of respondent No. 9 with the permission of the High Court makes it wholly different and calls for a closer examination of the relevant provision.

26. In order to arrive at a correct decision, it appears necessary to refer to the historical background of the Law of Pre-emption which had its genesis in Islam. In Bhawani Parasad v. Damru (ILR1883Al1.197). it was observed by Mahmood J., the Right of Pre-emption "is not traceable to any other source than the influence of Muhammadan Law". For this the learned Judge relied on a Full Bench authority of the Calcutta High Court-Fakir Ramey v. Sh. Emam Bakhsh (B L R Rul. 35). The expressions Shafi Sharik (share-holder), Shafi Khaleet (contiguous) and Shafi Jar (neighbour) used by the Muslim Jurists of the early days signifying the three categories of pre-emptors who can successfully challenge a sale of immovable property, also bear testimony to its origin in Islamic Law. The reason d'etre of this legislation is to shut out a stranger from being introduced in the midst of people of the same kith and kin or imported in a well knit homogeneous community in the interest of peace and harmony. Although Islam is the one religion based on the fundamental concept of Universal Muslim brotherhood and yet taking a realistic view of things and to preserve the amity and good will in the community it has through the Law of Pre-emption tried to safeguard the paramount interest of peace and good order. It would not at all be difficult to appreciate the problems likely to be created by the unrestricted importation of strangers on permanent basis, in the form of inevitable disputes leading to civil and criminal litigation. Quite consistently with this concept, the provision contained in section 18 sought to eliminate all chances of the induction of a stranger through subterfuges and circum vention so that a plaintiff having admittedly a superior right of pre-emption could join a stranger only on pain of forfeiture of his right. This back ground if kept in view would be very helpful in the interpretation of the statutory provision which should truly reflect the intention of the law-giver, namely, the keeping out of a stranger and thereby avoiding its natural consequences referred to above. Let me hasten to add that the reference to the Islamic origin of the Law of Pre-emption is confined only to the adoption of the underlying principle as envisaged by section 18 which of course has to be interpreted only as worded having regard to the phraseology, employed therein.

27. In the face of the provision contained in section 18, a stranger might be joined by the plaintiff pre-emptor on account of wrong advice, sheer ignorance of law or a bona fide mistake regarding the stranger's right of pre-emption presuming it to be equally superior. It would be in very rare cases indeed that he might be vindictively or capriciously joined in the false or fortuitous hope of success or the remote possibility of a compromise thus taking a mere chance.

28. From the plain reading of the statutory provision contained in section 18, it is clear that the loss of superior right of pre-emption is contin gent on "suing jointly" with a stranger. The precise question for determi nation, therefore, is as to what is meant by "sues jointly"? Is it confined only to the commencement of an action by presentation of plaint or does it necessarily envisage the entire proceedings from start to finish. There can be hardly any doubt about the fact that the right of preemption is the creation of a special law and is subject to the limitations contained therein as clearly provided in section 6 of the Pre-emption Act of N: W.F.P., which is the relevant law in the instant case. Likewise, it cannot be disputed that the provision contained in section 18 ibid regarding the forfeiture of the superior right of pre-emption for joining a stranger as a cc-plaintiff is of a mandatory nature. The fact would, however, still remain that the proceedings under the Law of Pre-emption are essentially of civil nature and except to the extent of inconsistency or specific exclusion, the procedure for trial of pre-emption suits has to be governed by the C.P.C. Malik Hidayatullah and others v. Murad Ali Khan (PLD 1972SC69), it was held by this Court that in the absence of any procedure prescribed for obtaining extension of time, for deposit under section 22(4) of the Punjab Pre-emption Act generals principles of the C.P.C. would apply and no exception could be taken to the duo mote grant of extension by the Court in the interest of justice. The question of any possible conflict between section 6 of the N.-W.F.P. Pre emption Act and Order I, rule 10 of the C.P.C. would arise only if the word "sues" occurring in section 18 ibid is interpreted as being confined to the commencement of , the proceedings on the entertainment of the plaint. Alternatively, if an extended interpretation is placed on it so as comprehend the entire proceedings, then obviously there would be no question of any conflict or the non-application of Order I, rule 10, C.P.C. to proceedings, under the Pre-emption Act. Thus in the ultimate analysis, the crucial point involved in the case is that of the interpretation of the word "sues" which is the crux of the matter and shall determine the fate of the case.

29. Before coming to the interpretation of the word "sues", it may be observed with respect that once a right has been created or conferred by the statute, a good deal of sanctity attaches to its protection, preservation and enforcement. of course it has to be given effect strictly within the prescribed statutory limitations. With the utmost respect I find myself unable to endorse the view that it is a weak right which could be readily defeated on grounds of technicalities as held in Allahabad authorities including A I R 1954 All.

94. Therefore, the enforcement of right of pre-emption as that of any other legal right is not to be frustrated on flimsy pretexts or untenable grounds and in my humble opinion, it would be C absolutely wrong to draw any legal distinction between the right of pre emption and any other legal right so as to relegate the former to an inferior position. I am fully conscious of the phraseology employed in certain authorities describing the right of pre-emption as piratical or predatory. But this apparently derogatory characterisation is merely intended to high light its rather unique feature of placing a curb on the freedom to sell one's property to party of one's choice. The restriction as stated earlier is based on salutory considerations of public policy and once recognised by law has to be fully respected.

30. Once this invidious distinction between the right of pre-emption and other legal rights is ignored bringing it completely at par with tile latter, with this changed frame of mind the Courts would no longer be prone to seek pretext to frustrate the right of pre-emption on flimsy technicalities including the absolute condemnation and irremediable penalization of a plaintiff for the initial errors of joining a stranger on the basis of a bona fide mistake which under the C.P.C. has been made curable even at the last stage of appeal. But as stated earlier this argument would be only collaterally helpful the crux of the matter being the correct interpretation of the word "sues".

31. In support of his contention that the withdrawal of Haji Abdul Hakim Khan respondent No. 9 during the pendency of the trial, who was initially impleaded as a co-plaintiff with the appellants did not affect the rights of the latter, Mr. S. M. Zafar their learned counsel relied on Raja and others v. Hussain and others (P L D 1957 Lah. 52), and Mehr Allah Ditta and another v. Muhammad Ali and another (P L D 1972 S C 59), wherein it was held that the right of pre-emptor/plaintiff is not lost if a stranger having been joined by him as a co-plaintiff withdraws from the suit at any stage of the proceedings inasmuch as the mistake in joining him in the first instance is merely procedural in nature and therefore, remediable under Order 1, rule 10, C.P.C. even at the appeal stage. In these authorities, the conflict of views between the Allahabad High Court and the Punjab Chief Court and Punjab High Court was also noticed in detail. According to the Allahabad view, the superior right of a plaintiff/pre-emptor stood absolutely forfeited the moment he joined with him a stranger whose subsequent withdrawal did not cure the fatal defect. Before 1922 the view held by the Allahabad High Court was based on the imported application of the Rule of Muslim Law and not on any statutory provision which was for the first time incorporated in the Agra Pre-emption Act XI of 1922 which of section 21 was identical in terms with section 18 of the N.-W.F.P. Pre-emption Act, 1922. The two cases relied upon by the appellant's learned counsel proceeded under the Punjab Pre emption Act which did not contain a corresponding provision but nevertheless plaintiff/pre-emptors who joined strangers as co-plaintiffs with them forfeited their right provided the stranger did not withdraw. It is abundantly clear that the conflict of view between the Allahabad High Court and Punjab Chief Court existed even before the incorporation of section 21 of the Agra Pre-emption Act when both the Courts based their decisions on the application of the principle as a Rule of Muslim Law the restriction having been based on "equitable acquiescence" to the violation of the right of pre-emption except in some cases decided by the Allababad High Court where the Rule had been extended on ground of "religious usage or institution" in terms of section 24 of the Bengal Civil Courts Act 1871 as held by Mahmood J. in Gobind Dayal v. Inayatullah (I L R 7 All. 775). In fact the divergence of opinion can be traced to the year 1893 when the view taken in Sharif and another v. Pir Bakhsh and another ((2) 83 P R 1893), which has since held the field in this part, was dissented from by the Allahabad High Court in Bhawan Parsad v. Dambu (ILR5Al1.9) which has been consistently followed by that Court. However, since in the instant case, the right of pre-emption is a statutory right governed and regulated by the Pre-emption Act, namely, the N; W.F.P. Pre-emption Act of 1950, the final decision would depend as stated earlier on the interpretation of the expression "sues jointly" used therein.

32. It may be observed with respect that the whole approach in dealing with the right of pre-emption seems to have been coloured by the concept of the so-called piratical or predatory nature of the right with which I am in respectful disagreement. Once the approach is altered, there should be no reason why so much premium should be placed on a bona fide mistake under which a stranger might have been initially joined by a plaintiff/pre emptor so as to be non-suited beyond remedy.

33. The word "sue" according to Black's Law Dictionary means "to commence or to continue legal proceedings for recovery of a right ; to proceed with an action and to follow it up to its proper termination." In the same Dictionary "suit" has been explained as "a generic term, of comprehensive signification, and applies to any proceeding by a person or persons against another or others in a Court of justice in which the plaintiff pursues, in such Court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity." According to Corpus Juris Secondum "sue" means "to commence or to continue legal proceedings for the recovery of a right, to proceed with an action and to follow it up to its termination". "Sue and sued" has been explained as "normally including the natural consequences and appropriate incidents of legal proceedings and embrace all civil process incident to the commencement or continuation of legal proceedings." "Suit" has been defined as "an action or proceedings in a Court of justice for the enforcement of a right or claim or the redress of an injury". According to the Oxford English Dictionary "sue" in the ordinary sense means "to follow a person, a track or a thing in motion, to go in pursuit of, to chase or pursue, to prosecute or carry out an action and also to institute some legal proceedings, to prosecute them in a Court of Law. No doubt in its limited sense, "suing" could be confined to the mere presentation of a plaint but in my humble opinion "suing" in this context has to be liberally interpreted and therefore, the presentation of the plaint only marks the commencement of the process of suing. According to Stroud's Dictionary, in one context "suit" means "sued to judgment", and therefore, any withdrawal of the stranger till the conclusion of suit including the appellate stage the stranger could withdraw the forfeiture of the pre-emptor's superior right. The trial Court refused permission to Haji Abdul Hakim Khan respondent (1) No. 9 to withdraw from the suit. His revision was, however, accepted by the High Court which order remained unchallenged. Even otherwise, in my humble opinion the rather narrow and much too technical a view taken by my learned brother would run counter to the object behind the legislation which could not have intended such a capitalisation of a slip or a bona fide mistake resulting in the fatality of the suit. For the foregoing reasons, I would be inclined to accept the appeal.

ORDER OF THE COURT

34. In accordance with the majority opinion the appeal is dismissed without .order as to costs.

35. S.A.H Appeal dismissed.