AHMAD KHAN vs MALLA And Other
This matter originated from a pre-emption suit filed by respondents claiming a preferential right to purchase agricultural land based on their status as tenants. The Assistant Commissioner rejected the plaint due to the respondents' failure to deposit the requisite court fee, a decision upheld by the Additional Commissioner and the Board of Revenue. However, the High Court, invoking its writ jurisdiction and relying on the precedent set in Shana Khan v. Aulia Khan, set aside these orders and remanded the case, granting the respondents time to rectify the court fee deficiency. The petitioner, the vendee of the land, sought leave to appeal against this High Court order. The petitioner contended that, in light of the Supreme Court's judgment in Government of N.-W.F.P. v. Said Kamal Shah, the respondents, as mere tenants, no longer possessed the right of pre-emption under the injunctions of Islam, rendering their suit abated. The Supreme Court admitted the petition, stayed further proceedings before the Assistant Commissioner, and ordered the appeal to be fixed for hearing alongside similar pending cases.
- Does the status of a tenant confer a right of pre-emption under the injunctions of Islam?
- Can a pre-emption suit proceed if the plaintiff does not fall within the categories of persons possessing the right of pre-emption under Islamic law?
- Does the failure to pay court fees justify the rejection of a plaint in a pre-emption suit?
1. NASIM HASAN SHAH, J.--The petitioner is the vendee of a piece of agricultural land. The respondents Nos. l and 2 questioned the sale through a pre-emption suit claiming that they had a preferential right of sale, being tenants of the land in question. The plaint, however, was rejected by the Assistant Commissioner/ Collector on the ground that the respondents had failed to deposit the requisite Court-fee, despite being asked to do so. The respondents challenged the order of the Assistant Commissioner, but their appeal was dismissed by the Additional Commissioner. They then approached the Board of Revenue, by a revision, which too was dismissed. However, the High Court in exercise of its writ jurisdiction set aside all these orders by placing reliance on this Court's judgment in Shana Khan v. Aulia Khan PLD 1984 SC 157 and remanded the suit to the Assistant Commissioner/ Collector allowing the plaintiffs to make good the deficiency of Court-fee within one month and directing the Assistant Commissioner/ Collector to decide the case on merits, if the deficiency was made up within the requisite period. Hence this petition for leave to appeal.
2. Malik Saeed Hassan, learned counsel for the petitioner, has, inter alia, contended that the respondents Nos. l and 2 being merely the tenants of the land can no longer pursue their suit for pre-emption which has now abated as they do not fall in the category of persons who possess the right of pre-emption under the injunctions of Islam and in this connection relies on Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360.
3. The appeal shall be made ready on the present record and fixed for hearing alongwith similar cases.
4. Further, proceedings before the Assistant Commissioner/ Collector shall remain stayed meanwhile.
5. Security shall be furnished in the sum of Rs.2,500.