MUHAMMAD ARIF vs Raja MUHAMMAD ASLAM And Other
This matter concerns two civil petitions for leave to appeal against judgments of the Lahore High Court, which dismissed the petitioner's suits for pre-emption. The petitioner initially claimed a superior right of pre-emption based on being the brother of the vendor. Following the dismissal of his suits and subsequent appeals, the petitioner sought to amend his plaints to plead co-sharership and the performance of talabs, citing evolving Supreme Court jurisprudence regarding the validity of certain provisions of the Punjab Pre-emption Act under Islamic injunctions. The High Court rejected these applications for amendment. The Supreme Court granted leave to appeal, determining that the petitioner's submissions regarding the High Court's refusal to allow amendments to the pleadings in light of the principles established in Government of N.-W.F.P. v. Said Kamal Shah and subsequent case law required further examination. The Court held that the legal questions raised warranted a full hearing, thereby granting leave to appeal subject to the furnishing of security.
- Whether a plaintiff in a pre-emption suit is entitled to amend the plaint to include grounds of co-sharership and performance of talabs after the initial suit has been dismissed?
- Does the judgment in Government of N.-W.F.P. v. Said Kamal Shah require courts to allow amendments to pre-emption pleadings to reflect co-sharership?
- Can a second appeal be dismissed solely on the basis of the law laid down in Sardar Ali and others v. Muhammad Ali and others without considering subsequent developments in pre-emption law?
- Punjab Pre-emption Act, 1913
ORDER
RUSTUM S. SIDHWA, J.---This order will dispose of two petitions, namely, Civil Petitions for Leave to Appeals Nos. 424-R of 1988 and 425-R of 1988 filed by Muhammad Arif petitioner against the two separate judgments of the Lahore High Court, Rawalpindi Bench, dated 4th September, 1988.
2. One Muhammad Sadiq sold three kanals five marlas of land out of Khata No.120, Khasras Nos.1219 and 1233 in village Muri Khazan, Tehsil and District Rawalpindi, to Raja Muhammad Aslam and others respondents for Rs.6,000 vide registered sale-decd dated 17th September, 1978. Likewise, Muhammad Sadiq sold three kanals and four marlas out of Khata No.120/183-4. Khasras Nos.1219 and 1233 in village Muri Khazan, Tehsil and District Rawalpindi, to Naseer Ahmed and others respondents for Rs.6,000 vide registered sale-deed, dated 17th September, 1978. Muhammad Arif petitioner filed two suits for pre-emption against the two sets of respondents/vendees to pre-empt the sales, asserting his superior right as a brother of the vendor. On 1st June. 1983, both the suits were dismissed on the ground that the disputed sales were exempted. The petitioner thereupon preferred two separate appeals, which were likewise dismissed on 21s: October, 1984. The petitioner then filed two separate second appeals, which were dismissed on the short ground that in view of the law laid down in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287, no decree could be passed in favour of the petitioner.
3. On behalf of the petitioner it is submitted that after the two regular second appeals were admitted, the Shariat Appellate Bench of the Supreme Court in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 declared the provisions of the Punjab Pre-emption Act, to the extent that it conferred superior right of pre-emption on co-sharers who were owners, as valid under the injunctions of Islam and the petitioner also filed applications before the High Court for amendment of the plaints to take the ground of co-sharership and to plead talabs, which applications were unreasonably rejected by the learned Judge of the High Court. It is submitted, on the basis of Ahmad's case PLD 1989 SC 771, that ownership coupled with co-sharership or contiguity were saved and not declared to be repugnant to the injunctions of Islam and the High Court should have permitted the petitioner in both the cases to amend his pleadings.
4. The submissions raised by the learned counsel for the petitioner in both these petitions require examination. Leave is, therefore, granted in both the cases. The petitioner shall furnish security of Rs.5,000 in each case. The appeals shall be heard on the basis of the present record. The parties are at liberty to file further documents which they consider necessary for the full and final disposal of the appeals.