REHMAT ALI Versus HASSAN MUHAMMAD
One Muhammad Iqbal purchased the suit land measuring 16 Kanals, 6 Marlas vide registered sale‑deed, dated 27‑5‑1974. The petitioner claiming to be an owner in the estate filed a suit for possession by pre‑emption of the suit‑land on 11‑7‑1974. The respondent claiming that the land is comprised in his non‑occupancy tenancy filed a similar suit on 19‑7‑1974. The learned Civil Judge dealing with two suits proceeded to make order under section 28 of the Punjab Preemption Act, 1913 and the parties were impleaded as defendant in each other suits. While the suits were so pending para. 25 of M.L.R. 115 was amended and as a result of the said amendment the suit filed by the respondent stood transferred to the Court of a Collector. As it happened, the suit filed by the petitioner was decreed by the Civil Judge on 18‑2‑1978 ‑while the suit tiled by the respondent was decreed by the Collector on 30‑5‑1979.
2. On 10‑7‑1979 the petitioner filed a suit, out of which the present Civil Revision has arisen. In the plaint it was stated that the decree passed in favour of the respondent by the Collector being violative of the aforenoted provision of law is void and it should be declared as such. The respondent contested the suit. Following issues were framed:‑‑
(1) Whether the Court has no jurisdiction to try this suit? OPD
(2) Whether the decree, dated 18‑2‑1978 passed in favour of the plaintiff, is illegal, void and ineffective against the right of the defendant? OPD.
(3) Whether the decree, dated 30‑5‑1979 passed by the learned Collector Ferozewala, has no effect against the rights of the plaintiff and is invalid? OPP.
(4) Relief.
The evidence of the parties was recorded. The learned trial Court decided issue No. l only and holding that it has no jurisdiction proceeded to dismiss the suit vide judgment and decree, dated 10‑7‑1985. The petitioner filed q first appeal which was heard by a learned Additional District Judge, Sheikupura who dismissed the same on 1‑12‑1985.
3. Mian Nisar Ahmad, learned counsel for the petitioner contends that the decree passed in favour of the respondent by the Collector in the absence of his client is illegal and ought to have been set aside. Relief on the case of Noor Ahmad v. Assistant Commissioner/Collector, Gujrawala and five others (PLD 1992 SC 573) to contend that the decree be set aside and the matter be remanded to the Collector to decide the case after impleading the petitioner. Mr. Khurshid Ahmad Chaudhry, learned counsel for the respondent, on the other hand, with reference to the case of Malhi Khan v, Member (Revenue), Board of Revenue, Punjab Lahore and 2 others (PLD 1991 SC 824) argues that the right conferred on a tenant under M.L.R. 115 is not to be fettered by any provision of the Punjab Pre‑emption Act, 1913 and as such the decree passed by the Collector in favour of his client cannot be questioned by the petitioner.
4. I have gone through the copies of the records appended by the petitioner with this Civil Revision. The facts as stated by me above are undisputed. I must state that the said case of Noor Ahmed relied upon by Mian Nisar Ahmad, Advocate does support him inasmuch as the proposition propounded by the learned counsel was so laid in the said judgment by the Supreme Court of Pakistan. So far as the contention raised by Ch. Khurshid Ahmad is concerned, the said judgment in the case of Malhi Khan does not lay down as sweeping a proposition as proposed by the learned counsel, Their Lordship in fact held that inasmuch as the substantial provision of para. 25(3)(d) of M.L.R. 115 are concerned, they vested the tenant with a first right of pre‑emption and that any provision in Punjab Preemption Act, 1913 which tends to take away the said right so vested in a tenant shall have to give way as the provisions of M.L.R. 115 arc to take effect notwithstanding anything to the contrary contained in any' other1aw. So far as the procedural matters as to the manner in which the right is to be exercised, are concerned, their Lordships did hold that the provisions of Punjab Pre‑emption Act, 1913 would be applicable. Thus, the basic judgment on the subject given by the apex Court in the case of Muhammad Khan v. Abdul Khaliq Khan (PLD 1981 SC 153) stood approved in both the said cases having been cited by the learned counsel for the parties.
5. It remains, however, to be seen as to whether in the facts and circumstances of the present case would it serve any purpose to set aside both the decrees and to order the retrial of both the cases filed by the parties against each other on the ground that the provisions of section 28 of Punjab Pre‑emption Act, 1913 have been violated. I find it appropriate to reproduce here some excerpts from the judgment of Chief Justice Muhammad Afzal Zullah (as his Lordship then was) in the case of Syed Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 SC 1051) also referred to in the said case of Noor Ahmed before examining the present case in the light of the said principles:‑‑ ???
"Leaving aside technical arguments raised by the learned counsel the fact remains that now both the cases are before the Supreme Court‑‑?though coming from different original jurisdictions. When they are put in juxtaposition to each other, the respondent as compared to the appellant having the superior right of pre‑emption, it is not possible for this Court to allow, the appellant's appeal. Even if there would have been some force in the technical objection of the learned counsel, justice could not have been sacrificed, at least in this Court, on the altar of the technicality which does not go to the root of the cause, in so far as the fairness thereof is concerned. The Courts in Pakistan combine law and justice under the umbrella of Islamic jurisprudence; which provide harmonious solution for situation like the present one. One amongst other principle which' operates is that an obviously unjust and wrong decision which is also against the substantive law of the country, shall be avoided by the Court.
Even a winning party in our society feels embarrassed and sometime guilty as well; if it has no case under the dictates of justice, but succeeds merely on account of technical failure of the other side. It is so because justice in such a situation does not even appear to have been done. This appearance of justice in Islam is not only for lawyers and intellectual; say in foreign lands; but they include our own people in general‑‑the litigant parties being in the forefront.
It is also a well‑known principle in Islamic justice, that one who succeeded in ‑a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to' do justice in accordance with the law, the principles in our own jurisprudence governing just, dispensation shall have to be kept in view. In other words while adhering to the principle: Justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional principles in Islam come to the aid when, one exerts. "
In this suit both the parties were pitted against each other. The petitioner with a decree passed on 18‑2‑1978 by a learned Civil Judge and the respondent with a decree passed on 30‑5‑1979 by a Collector in respect of the same land. From the pleadings it does not appear that the respondent questioned the right of pre‑emption claimed by the petitioner in his suit i.e. ? owner in the estate. Now it is to be seen as to whether the petitioner questioned the said right of the respondent on the basis of which he got the decree from the Collector in respect of the same land. The plain reading of the plaint would show that the petitioner not only admitted that the respondent was a tenant in the suit‑land but insisted that he had been demanding the share of produce from him after getting the decree from the Civil Court. In para. 7 the petitioner states as follows:‑‑
In para. 8 of the plaint he states as under:‑‑
In para. 9 he makes the following demand.
6. Although the learned trial Court proceeded to dispose of the suit after holding that it has no jurisdiction, yet I find that the learned Additional District Judge while hearing the appeal of the petitioner delved upon other issues as well. I have already stated above that parties did lead evidence in this case. The learned Additional District Judge on the basis of evidence recorded in the present suit between the parties had held that the respondent was a tenant in the suit‑land since the years 1971 and is still in possession of the same. This is a finding of fact recorded in this inter parties lis and is supported by no other document than the very plaint of the petitioner himself.
7. Here I would take an opportunity to reproduce a portion of the judgment in Noor Ahmad's case from page 576 of the report:‑‑‑
"Having failed on the main point learned counsel for Noor Ahmad tried to argue that on merits also notwithstanding Noor Ahmad's decree being a consent decree, it would stand the test of scrutiny; and that, the other rival pre‑emptor side has not been able to find any flaw with the plea of Noor Ahmed that he had a preferential right on the basis of tenancy. When pointed out that Allah Dad and his successor‑in‑interest have not been allowed a fair chance of contest including the contest relating to the presumptions attached to the Revenue Records it will be unfair to them if their plea is rejected without a fair trial. This argument on merits thus also failed."
It will thus, be seen that the principle underlying the said section 28 of the Punjab Pre‑emption Act, 1913 is that the rival pre‑emption should have to face each other in a fair trial. In the present case, both the pre?emptors had chance to face each other in the present suit and to lead evidence in support of their respective contentions and the learned Additional District Judge on the basis of evidence recorded in the case has concluded that the respondent has a superior right of pre?emption as against the petitioner. In this view of the matter I find that the interest of justice had been fully met and the petitioner cannot complain at least after the decision of the present suit after the parties had gone to trial that any injustice has been done to him. On the touchstone of proposition laid down in the case of Syed Phul Shah it cannot be said that the decision given by the learned Additional District Judge is "an obviously unjust and wrong decision which is also against the substantive law of the country."
8. Although I have tried to approach the case from an angle to see as to whether justice has been done in this case or not, yet. I am constrained to refer to a technicality. I am hearing a Civil Revision and the jurisdiction of this Court is clearly defined in section 115, C.P.C. I do find that apart from the fact that the judgment of the learned Additional District Judge is manifestly just, it does not suffer from any of the defects prescribed in section 115, C.P.C. This Civil Revision is accordingly dismissed leaving the parties to bear their own costs.
H.B.T./R‑37/L ???????????????????????????????????????????????????????????????????????? Revision dismissed.