GHULAM ABBAS Versus MUHAMMAD ASHRAF

1. MUHAMMAD AFZAL ZULLAH, CJ . ‑‑‑This appeal through leave of the Court is directed against the acceptance by the High Court of respondent/vendee/defendant's Regular Second Appeal arising out of appellant's suit for pre‑emption. Leave grant order is as under:

2. "It was the sale of occupancy rights in the suit land which is the subject‑matter of the suit for pre‑emption, filed by the petitioner. His plea regarding co‑sharership was rejected and the learned counsel now admits, rightly so. However, his plea of ownership in the estate was rejected by the High Court; it appears, solely on the ground that it was not raised in the plaint. Otherwise, it appears that the fact that the petitioner is an owner in the estate is not seriously disputed. The observations made by the High Court in this behalf are as follows:

3. `Mr. Ghulam Abbas also argued that plaintiff was owner of the estate and on this ground was entitled to succeed. In the plaint, no such ground was taken. Therefore, even if it be assumed that the plaintiff was an owner of estate, it does not materially assist him. Plaintiff can only succeed on the grounds stated in the plaint and the one though proved but not relied upon in the plaint, cannot be taken notice of unless the plaint is properly amended and the defendant is given a chance of defence'.

4. Learned counsel has contended firstly that paragraph 3 of the plaint contains the ground regarding ownership in the estate. It reads as follows:‑‑

5. "This prima facie supports the learned counsel particularly, when the pleadings in this case can safely be treated as that of a Mofussil area, in connection with which the Courts have ordinarily refrained from applying strict rule of construction.

6. Learned counsel has also raised an alternative plea; namely, that even if a ground is not specifically raised in the plaint but is undeniably established from pleadings/record or is not denied by the other party, it becomes the duty of the Court in the interest of justice to direct amendment of the pleadings and further proceedings accordingly. In this case, as it appeared to be an undeniable fact that the petitioner was an owner in the estate, legal effect should have been given to this circumstance. No further proceeding were necessary and a formal amendment of the plaint even during the course of hearing of the arguments, could have been allowed/directed."

7. Same arguments as noted for the grant of leave to appeal have been advanced and reiterated by the learned counsel for the appellant. Learned counsel also relied on another ground pleaded in the plaint instituted by the appellant which reads as follows:‑‑

8. Learned counsel for the respondent has contended that the right of pre‑emption being predatory no such concessions as are visualised in the leave grant order should be allowed to the appellant/pre‑emptor. No doubt there arc some judgments to the same effect as pointed out by the learned counsel; but it is now thought to be a view of the old under the newly developing Pakistani Islamic jurisprudence, this derogatory remark about right of pre emption is not much liked, See Siddique Khan v. Abdul Shakur Khan PLD 1984 Supreme Court 289.

9. The following discussion on this subject in the said judgment is z complete answer to the objection from the respondent's side:‑‑---

10. "It may be observed that the reason for applying such strict rule of interpretation in some cases of pre‑emption so as to have recourse to section 3 of Limitation Act instead of proper application of Order VII, rule 11 (b) and (c) or for that matter sections 148 and 149, C.P.C. and section 28 of Court Fees Act, was the then prevailing notion that right of pre‑emption was predatory. This view suffered considerable change in post‑Partition period in Pakistan. One reason being that it was against Islamic jurisprudence wherein this is a right as much enforceable as any other right and further that it has a connection with the law of inheritance in Islam as was observed by Mahmood, J. in Gobind Dayal v. Inayatullah ILR 7 All. 775 at p. 782 as follows:‑‑--

11. `Upon the present occasion it is unnecessary to consider whether `gift' can properly be described as a `religious usage or institution' within the meaning of section 24. I am here concerned only with the question whether pre‑emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankie, J. I may observe that pre‑emption is closely connected with the Muhammadan Law of Inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe."

12. `This Court has also adopted the rule that a pre‑emptor cannot be disallowed a relief or prayer on account of any such like notion. See Allah Ditta v. Muhammad Ali PLD 1972 Supreme Court 59 and Hadayat Ullah v. Murad Ali Khan PLD 1972 Supreme Court 69. Similarly, the approach in this behalf in a recent case Jan Muhammad v. Shukeruddin 1980 CLC 186 is to the same effect. Thus it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre‑emption matter. The law as it is, has to be applied without any such consideration. Otherwise it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitution, which is not permissible".

13. Learned counsel for the respondent also stated that the drafting of the plaint in this case should not be treated at par with other plaints from Mofussil as observed in the leave grant order because it has been drafted by the plaintiff/lawyer; That will not make the lawyer non‑Mofussil. If he as a mofussil lawyer is likely to miss something on account of lack of sophisticated experience. He would remain a Mofussil lawyer and the remarks in reported cases about such drafting would be attracted. Learned counsel then contended that even in Mofussil now the experience is being gained and there are very good lawyers who have joined premier Bars of the country from Mofussil. Undoubtedly this has been seen as a refreshing experience but the fact remains that the subject‑matter under discussion is still passing through the stage of transformation. In this matter in any case the plaint was drafted about a quarter century ago.

14. It was next contended that the two grounds for pre‑emption; one, reproduced in the leave grant order and the other quoted above can be read as implying only two considerations. One, that the plaintiff is one of the owners of the land in dispute and that being so he has a preferential right of pre‑emption. The argument proceeds further that the expression, (one who is an owner in the estate) one of the owners has reference, vis‑a‑vis, the sale of occupancy rights which was being pre‑empted by the appellant. Hence his being a land owner having been pleaded as giving right to pre‑empt, would not mean that the appellant was pleading ownership in the estate. We questioned that as admitted by the learned counsel himself, the ownership in the land which is the subject‑matter of occupancy rights (which were being sold) did not create a right of pre emption at all and in that context, therefore, the reference to the ownership of the appellant in the (column of ownership) might relate to a general ownership in the estate in other words (one who is an owner in the estate). Learned counsel hinted that perhaps the person who drafted the plaint was not aware that being an owner would not confer right on a plaintiff do pre‑empt the sale of occupancy rights. We do not agree with him. If there are two possibilities of reading the same ground in different manners, one helping the plaintiff and the other being redundant, this controversy can be resolved in favour of the plaintiff on the basis of the afore‑discussed question of mofussil drafting of pleadings. The second ground, we agree with the learned counsel, does not indicate a plea for pre‑emption on the ground of ownership in the estate. During the arguments and discussion on the above lines, when it was further pointed out to the learned counsel for the respondent that it is for these very reasons that it was visualised in the leave grant order that the plaintiff may be permitted even now to clarify the position with regard to the ground for his right to pre‑empt the sale in question, he replied that it is too late now to permit such an amendment and secondly that it would prejudice the respondent in his defence in this Court; notwithstanding the fact that the appellant being an owner in the estate (as a statement of fact) is an undeniable proposition. When further asked that after such an undeniable factual position the results would be the same if a further inquiry is held in the matter; namely, that the appellant would be held to be one of the owners in the estate and on account thereof would be entitled to a decree for pre‑emption, learned counsel raised an argument on which there does not seem to be any decided case. Precisely his argument in this behalf is that even if the appellant is an owner in the estate, the residuary, ground in section 15 of the Pre emption Act does not confer a right on him to pre‑empt the sale of occupancy, right. According to him section 15 exhausts all those categories of pre emptors who could file suits for possession of land on ground of pre‑emption when only occupancy rights therein, have been sold. Undoubtedly whatever its worth no opinion has been expressed by any of the Courts below on this question. However, there is plenty of case‑law for permission to amend the pleadings even at a late stage. See amongst others Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345.

15. In the light of the foregoing discussion there is ample justification for grant of permission to the appellant for the amendment of the plaint, so as to specifically include the ground in para. 3 of the plaint to the effect that the appellant being owner in the estate has a right of pre‑emption. It has been allowed in order to remove any doubt with regard to the interpretation of sub para. "1" in paragraph 3 of the plaint. As the appellant has gained an advantage at this late stage in the Supreme Court and the respondent has suffered litigation before the lower Courts for inapt drafting of the plaint, it is fair that the latter (appellant) should compensate the respondent in this behalf. We, accordingly, while allowing this appeal after permitting the stated amendment, set aside the impugned judgment and remand the case to the trial Court for fresh trial wherein the parties would be allowed further opportunity of amending their pleadings, if necessary. It is with further direction that the appellant shall pay the costs throughout to the respondent.

16. A.A./G‑409/S Case remanded .