Syed PHUL SHAH vs MUHAMMAD HUSSAIN and 10 others

1. ' MUHAMMAD AFZAL ZULLAH, C.J.----This appeal through leave of the Court is directed against the judgment dated 19-2-1990 of the Lahore High Court; whereby the appellant's Regular Second Appeal arising out of a preemption matter, was dismissed. The leave grant order dated 30-6-1990 reads as follows:-- "Muhammad Hussain respondent No, 1 purchased the land in dispute measuring 1 Kanal 12 Marlas which was pre-empted by the petitioner on the basis of co-ownership and owner in the estate. This sale was also preempted by one Muhammad Yasin the predecessor-in-interest of the respondents Nos.2 to 11 claiming to be a tenant wherein the petitioner was not impleaded to be a party. A consent decree was passed in the subsequent suit in the Revenue Court in favour of the plaintiff.

2. The present petitioner impleaded the decree-holder as party and claimed that the decree passed in his favour is collusive and only with the intention to defeat the rights of the petitioner.

3. ' The learned Civil Judge Attock vide his judgment dated. 24-4-1978 decreed the suit of the plaintiff on payment of Rs, 16,000. The heirs of Muhammad Yasin challenged this decree and order before the District Judge Attock who vide order dated 4-11-1980 remanded the case on the question of market price to the trial Court with direction to determine the same through the local Commissioner. The learned trial Judge upheld the judgment of the trial Court but enhanced the decretal amount to Rs, 32,000, vide his order dated 10-5-1981. Both the parties went in appeal against this judgment before the District Judge who vide his single judgment dated 7-2-1982 accepted the respondents/defendants' appeal and rejected the petitioner/plaintiff appeal. The petitioner filed two appeals before the High Court which were dismissed by a single judgment dated 19-2-1990. This order of the High Court is now impugned.

4. ' We have heard the learned counsel for the petitioner and have gone through the findings of the Courts below. The question involved in this petition whici needs thorough consideration of this Court is, whether in two rival pre- emption suits, one filed by a person claiming his superior right on the basis of tenancy in the Revenue Court, getting a consent decree in his favour without impleading the other pre-emptor who claims his right as a co-sharer and owner in the estate, filing a suit in the Civil Court, and as such whether the latter is debarred to challenge to decree in favour of a tenant in his suit before the Civil Court and further that the order of remand passed by the District Judge on 10-5-1981 leaving intact the finding about the right of pre-emption as decreed in favour of the petitioner unchallenged by the rival pre-emptor in the High Court is liable to be opened by Civil Judge after receipt of the case on remand."

5. ' Learned counsel for the appellant advanced two contentions. One, that the case having been remanded only on question of sale price, the other question relating to the rights of rival pre- emptor could not have been re-opened by the lower Court. He also contended that the two trial Courts, namely, the Civil Court trying the appellant's suit wherein the respondent/rival pre-emptor had not been impleaded and the Revenue Court trying the respondent/rival pre-emptor's suit on the ground of tenancy, did not render any positive finding of fact that the respondent was in fact tenant, therefore, the decision by the High Court to the contrary is liable to be set aside. In so far as the second argument is concerned, learned counsel is not right in assuming that the Revenue Court had not given any positive finding in favour of the respondent/rival pre-emptor regarding his right of pre-emption based on tenancy. In the said case the vendee having admitted this fact, there was no controversy left, therefore, the Court rightly upheld the respondent's plea of tenancy and decreed his suit. The mere fact that it was a consent decree will not change the above-stated position. On the other hand in the judgments impugned in this appeal either a positive finding of fact on the issue of tenancy was rendered against the appellant or such a finding was upheld.

6. The first question raised by the learned counsel is linked with another question noted in the leave grant order: as to whether the decree in favour of the appellant without his having impleaded the respondent prior to the decision of his suit is valid or the decree in favour of the respondents by the Revenue Court without his having impleaded the appellant was valid. A similar question arose in Yaseen v. Khan Muhammad (1987 SCM R 944). The decision goes against the appellant. Similarly the judgment of this Court in Zahoor Alam v. Fazal Hussain (1991 SCM R 763) in so far as it goes, is against the appellant.

7. '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.

8. 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 provides harmonious solutions for situations like the present one. One amongst other principles 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.

9. ' Even a winning party in our society feels embarrassed and sometimes 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 intellectuals say in foreign lands; but, they include our own people in general-- the litigant parties being in the forefront.

10. ' It is also a well-known principle in Islamic justice, that one who succeeds 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 I come to the aid when, one exerts.

11. ' With the foregoing observations this appeal is dismissed with no order as to costs.