GHULAM QADIR Versus NAWAB DIN

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought in this petition in a pre‑emption matter by a plaintiff ‑pre‑emptor against the dismissal of his civil revision by the Lahore High Court. As the petitioner could not succeed before the High Court due to the pronouncements of tuts Court in cases of Said Kamal (P L D 1986 S C 360) and Sardar Ali (P L D 1988 S C 287); he moved an application in the High Court for permission to amend the plaint so as to include the ground for claiming pre‑emption under the Islamic Law, namely assertion of co‑sharership together with assertion of three well‑known Talabs. A learned Judge in the High Court while dismissing the application with the civil revision, observed as follows:

2. "This revision petition under section 115, C.P.C is directed against the judgment dated 6‑7‑1988 of the learned Additional

3. District Judge Lahore whereby the appeal ‑was allowed, the judgment and decree dated 5‑11‑1986 whereby the suit for possession by way of pre‑emption filed by the petitioner was decreed, was set aside and the suit of the plaintiff ‑pre‑emptor was dismissed.

4. Alongwith this petition an application under Order VI Rule 17 read with section 151, C.P.C. has been moved seeking amendment of the plaint with the averment that the petitioner was a co-sharer (a ground for pre‑emption in Islamic Law) also in the Khata as he had purchased the share in the joint Khata alongwith the respondent‑vendee under the same sale‑deed and he has also made three 'Talabs' in accordance with the injunctions of Islam. Learned counsel, in support of the revision petition argued that as the petitioner had made three 'Talabs' in accordance with the Injunctions of Islam, the amendment should be allowed and the petitioner be also afforded an opportunity to prove Talab‑e‑Muwasibat, Talab‑e‑Ishhad and Talab‑e‑Mukhasibat.. Ghulam Qadir, the petitioner, who was present in Court was asked about the 'Talab' assertedly made by him. He was not able to answer the question. He was not even aware of the concept of 'Talab' what to say of Talab‑e Muwasibat and Talab‑e‑Mukhasibat. The fact of the matter is that when the suit was filed, the superior right of pre‑emption was claimed on the basis of the provisions contained in the Punjab Pre‑emption Act, 1913. At that time the question of complying with the three pre‑requisites of Muslim Law pertaining to the enforcement of right of pre‑emption could obviously not be contemplated. The plea that the petitioner had made the three 'Talabs' as is contemplated by Muslim Law is apparently incorrect as the petitioner is not aware of the very concept and the meaning of the word 'Talab'. This plea has been taken for the purpose of seeking amendment .of the plaint. This application is, therefore, dismissed.

3. With the dismissal of the application under Order VI, rule 17 read with section 151, C.P.C. learned counsel has nothing to argue in support of the revision petition as the suit as framed could not be decreed after 31‑7‑1988. This revision petition fails ............. "

5. After the filing of this petition for leave to appeal, when the application for interim relief came before this Court in chamber, questions were asked from the petitioner similar to those he was confronted with in the High Court. His 'answers clearly demonstrated that he had made incorrect assertior about the Talabs simply to make out a case on the basis of Islamic Law. It was not only the impression gained by the Court but also by the learned counsel who has appeared before us today. He felt so perturbed that after talking to his client he made a request for withdrawal of the main petition. It was perhaps due to his own sense of duty towards this Court as also for saving his client from prosecution for making false statements.

6. We have by now dealt with many similar cases. Without any exception, it has been demonstrated that the question of making Talaba would not at all arise in those cases which were instituted under the Laws hit by the judgments of this Court in the cases of Said Kamal and Sardar Ali. We did our best to impress upon the

7. Lawyers, of the dangers inherent in making such like claims as was made by the petitioner in the High Court and in this Court, in this case. If a lenient and compassionable view would not have been taken on account of simplicity of men like the petitioner; he, perhaps, would have been behind the bars today facing criminal and other proceedings. A short common order passed in some of similar cases was approved for reporting in addition to the aforenoticed detailed judgments with a view to further acquaint the learned members of the Bar and others concerned with regard to the legal position. It. is reported as in Shoib and others v. Member Board of Revenue and others, (P L D 1988 S C 355). It was clearly held that " no decree can be passed now after the said date in favour of the pre -emptor on any ground ....co‑ownership, contiguity etc".

8. In some cases which have come to our notice, the learned counsel tried to make out case for "Talabs" by relying on such phrases in the plaints, which were used to be filed, under the old law, like; (BAWAJOOD TALAB AUR TAKAZA DAD RASI NA HOI ) so as to canvass that the plaintiff should be permitted to elaborate such assertions in the context of requirements of the Islamic Law. For obvious reasons such a position would be untenable. The learned Judge in the High Court in this case has correctly remarked that no question of Islamic "Talabs" could arise in such like cases. It has also indirect support of a 'very recent judgment of this Court on the Islamic Law of Pre‑emption in ‑another context. See Azizur Rehman v. Muhammad Nawaz,‑ (P L ‑D 1988 SC 384).

9. It may also be mentioned that in some cases, the learned counsel have tried to seek support from another short order passed by this Court in similar cases, where observation was made to the effect that no Talabs in accordance with Islamic Law having been made, the plaintiff .could not succeed. The point sought to be made was that perhaps, by intendment the Supreme Court opened the door, for assertion being made that the relevant plaints were filed after D making the Talabs; and, further that amendments could now be permitted. Such plea is also for obvious reasons untenable. When the Court observed that no Talabs were made, it was also meant to convey that in the context of the then existing pre‑emption laws, the Talabs were not only unnecessary and thus were not made, but also, that they could not have been made due to the peculiarities and strictness of the relevant law in this behalf. Said order of the Supreme Court is: Sher Muhammad v. Allah Ditta, (P L D 1988 S C 412). The following ‑observations therein fully demonstrate how we felt about the frivolous claims regarding Islamic Talabs:

10. "It is admitted that so far no decree has been assesed in their favour. It is not claimed t at .the requirement of Talabs as in Islam was fulfille d in these cases. In C.P.S.L.A.No.747 of 98 , learned counsel for the petitioners had not even heard o the expression ' Talabs'. That being so, no decree can now be asse their favour in view o the judgment of the Court in Sardar A i v. Muhammad Ali (C.A.No.20 of 1980, decided on 2-5-1988 (PLD 1988 SC 2 7). These petitions are accordingly dismissed."

11. It is no more necessary to keep this subject open. Simple (and sometimes poor) litigants due to lack of proper understanding and guidance think as if it is a religious duty (as against option) to sue for pre‑emption. In that mistaken zeal they might go to any length, as in many cases by now demonstrated before us. In other large majority of cases it is for mere greed and self‑enrichment, at the cost of the original vendee, that there is so much persistence.

12. In the cases which reach the superior Courts after a lapse of. time, the value of the property soars up in the meanwhile, without any limits. For obvious reasons in such cases unscrupulous plaintiffs can go to arty length and would make false assertions as done in this case. They do not realise that the first two Talabs, besides being the most important edifice of Islamic Shufa, are highly specialised The timing therein is to be co‑related to the original transaction Their forms also are very essential and important besides being indispensable. If they tail, no claim in the third Talab, can stand. A suggestion has also been made that the Court should now open a way out for making the 'Talabs' ex‑post facto. It is not that simple. This would imply making deviation in the Islamic Law regarding 'Talabs' in, so far as their timings are concerned. The so‑called .justification in this behalf (failure of some pre‑emptors otherwise) does not satisfy the conditions laid down in that behalf by this Court in Pakistan v. Public at Large, (P L D 1986 S C 240). It has also been hinted in some arguments that in the N.W.F.P. Pre‑emption Act, 1987, such a possibility of making the 'Talabs' ex‑post facto, regardless of the time limits prescribed by Islamic Law, has been left open and thus made possible. If that is so, that law might require amendment on the touch‑stone o the Islamic Injunctions.

13. The foregoing aspects of the litigation in the field of pre‑emption law would not be complete without mentioning another facet thereof; which has come to light during recent months after the pronouncements of the Supreme Court. on the subject. It has already been noticed that some people think it is their religious duty (farad) or .part of Ibadat to sue‑ for Islamic Shufa, whenever there 1s a ground for that; otherwise they would suffer in the life hereafter‑forgetting that it is a right and option and not a mandate for everybody to exercise this right/option.

14. It has also been pointed out that in a very large majority of cases the motive for the suit is self‑enrichment at the cost of another innocent person, the vendee. The more one studies the subject, a clear realisation emerges that the Islamic Law of Shufa is far from this philosophy. The jurisprudential basis of that law is totally different. It would, therefore, be not inappropriate for the law makers to define the Islamic right of Shufa in its own peculiar context. And in so doing might exclude its exercise when the motive and object for the exercise is self‑enrichment at the cost of others. And also take steps, in order to stop a rush for such enrichment in today's world of spiralling prices of land and property, galloping alongwith modern developments in industrial, urban, commercial and other economic fields. Big urban areas and rural lands are becoming very valuable overnight. For example, the announcement of an 'Industrial Zone', a 'new highway' or 'by‑pass' besides scores of other events would change the price structure of property from then onward, 'moment to moment'; what to talk of 'day‑to‑day'. Therefore, it might also be appropriate to examine very seriously: whether, in case (under the strict Islamic Law) the technical rule regarding Zari‑saman being the original price paid, cannot be changed, the additional benefit accruing due to such like increases in price during the litigation, should not be determined by the executing Court at the final stage, to be given to the deserving vendee. This prima facie, might be more in accord with the Quranic Injunctions on the freedom of contract regarding property‑‑See also in this behalf Pakistan v. Public at Large (P L D 1986 S C 240) . Moreover, such a provision if made/ implemented, would be more in accord with the general principles of Adl (~.~,) as enjoined by Islam. Many examples can be visualised in this behalf. It will also reduce speculative litigation. For the same reasons the Legislature might expand the number of exemptions under the principle of Zaroorat in Islam in the light of present day needs of development and progress involving corporate law and those of co‑operatives and commercial fields.

15. In the light of the foregoing discussion, this petition is dismissed.

16. It being the first case of its nature and in view of the fact that the petitioner has made amends, and further that he might have acted on wrong advice no action for contempt or criminal prosecution shall be taken, against him.

17. The request for withdrawal in the foregoing context of the discussion on merits, cannot be granted as such. But in the peculiar circumstances, it need not be refused either. Thus, in so far as the conduct of the petitioner is concerned, the dismissal shall also be deemed to be on withdrawal.

18. Regarding the learned Advocate suffice it observe that we appreciate' his moral courage and sense of duty towards the client and the Court.

19. M. B . A . /G‑126/S Petition dismissed