Find a Lawyer

Regular Second Appeal No. 443 of 1979. decided on Ilth November,

1979.

‑‑ S. 8 (2)‑Pending appeal‑Effect. of notification ‑Pre‑emptor not making up deficiency of court‑fee within time extended under S. 149, C. P. C.‑Plaint rejected and appeal against rejection dis missed‑During Pendency of second appeal notification under S. 8(2) issued declaring no right of pre‑emption exists in respect of land in question‑Held, no adjudication in favour of appellant creating vested right in his favour so as to escape consequences of effect of notification.

Mst.‑Bibi Jan and others v. Miss R. A. Monny and another P L D 1961 S C 69 rel.

Ch. Hakam Ali v. Hashu A I R 1938 Lah.244; Sardar Mohindar Singh v. Arur Singh and others A I R 1922 Lah. 344 and Kaju Mal v. Salig Ram 191 P R 1919 ref.

Munawar Hussain for Appellant. Ali Ahmad Awan for Respondent.

Date of hearing : 5th November, 1979.

Briefly stated the facts of the case are that the appellant had filed a suit for the possession of land measuring 141 Kanals 13 Marlas by the exercise of the right of pre‑emption. Respondent No. 1 purchased the suit land from the respondents Nos. 2 to 4 for a sum of Rs.24,07,200 vide a sale‑deed registered on 6th May, 1976. The appellant filed a suit and the plaint ‑wag affixed with a court‑fee of Rs.53. The office of the Civil Judge concerned reported that the suit was not properly stamped ‑and no statement of the annual produce of the land had been appended. In the circumstances the respondent No. 1 made an application under Order VII, rule 11, C. P. C., .for the rejection of the plaint on account of the appel lant having failed to pay the proper court‑fee. The plaint was, therefore, rejected by the orders of the learned trial Court dated 3rd December, 1977. The appellant submitted a review application, which was also dismissed on 24th January, 1978. This order was challenged by way of a revision peti tion in the High Court which, was disposed of by a consent order and the case was sent back. The appellant then made an application under sec tion 149, C. P. C. and also placed on record a statement of net profits for Rabi and Kharif 1977 which showed the annual income of the land to be Rs.20,205. The appellant was required to make up the deficiency in court‑fee before 5th of July, .1978 as the stamp value of Rs.14,947 was required to be paid. This order having not been complied with the plaint was again rejected in spite of verbal request having been made in this behalf. The appeal filed against the said order of rejection of the plain was; also dismissed by the learned Additional District Judge, Lahore vide his order dated 26th April, 1979.

2. This appeal was filed by the appellant against the aforesaid order of the learned Additional District Judge,‑ Lahore dated 26th April, 1979 dismissing the appeal of the appellant and affirming the order of the rejection of the plaint: This, appeal was admitted on the contention of the learned‑counsel that there was certain mutation in the order and that the non‑compliance in the order of the learned trial ‑ Court for making up the deficiency of the court‑fee was not complied with due to this fact. The Respondent No. 1 has made an application (being C. Miscellaneous No. 5668/79) informing‑this Court that a Notification No. 1042‑79/649‑LRIII, dated 3rd June; 1979 has been issued by .the Board of Revenue under subsection (2) of section 8 of the Punjab Pre‑emption Act declaring that no right of pre‑emption except the 'right granted to the tenants under paragraph 2i of the Land Reforms Regulation, 1972 (M. L. R. No. 115 shall exist with respect to the sale of agricultural land in the village specified in the schedule. The land in dispute falls within the limit of one of the villages, i.e., Hanjarwal, Tehsil and District Lahore, notified in the schedule attached to the notification. ‑ It is, therefore, prayed that no suit for pre‑emption would lie in respect of the land in question and the appeal which has been admitted in the circumstances enumerated has become infructuous. This application is resisted by the appellant. His contention is that such a notification issued under section 8 of the Punjab Pre‑emption Act would not affect the pending case.

3. On the other hand the contention of respondent No. 1 is that a notification issued under subsection (2) of section 8 will have the effect in respect of a matter where no decree has been passed. It is further argued that a pre‑emptor must have a superior right of pre‑emption not only at the time of the sale, at the time of the filing of the suit but should also retain it upto the passing of the decree. Reliance in this connection has been placed on a judgment of the learned Supreme Court reported as Mst. Bibi Jan and others v. Miss R. A. Monny and others (PLD1961SC69) where their Lordships of the Supreme Court have examined a ease where a notification under section 8 (2) of the Punjab Pre‑emption Act been issued after the decree had been ‑passed in favour of the pre‑ emptor/plaintiff. In that connection the entire law was examined and as per observations of their Lordships such a notification shall have the effect of taking away a right of the pre‑emptor before the passing of the decree. The observations of their Lordships at page 75 may be quoted with advantage

‑The reported cases in which a decree bad been obtained by the pre emptor in the Court of first instance before a notification under section 8 (2) of the Punjab Pre‑emption Act, 1913, was issued, are easily distinguishable from those in which the right to pre‑empt had not yet been incorporated into a formal adjudication by a Court. In the former type of cases it could be reasonably argued that the right to‑sue had merged in the decree of the Court, which would hence forth be regarded as the source of rights, for the decree‑holder. Such a decree would, therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the right of pre‑emption in similar cases. The real difficulty arises in the cases of the second type of which Kaju Mal v. Salig Ram 91 P R 1919 and Mohindar Singh v. Arur Singh I L R 3 Lah. 267 may be cited as representative. With all respect, it seems to us that the learned Judges in those cases, interpreted the words of the notification too narrowly in their anxiety to save vested rights. The words of the notification appear to us to be plain. and to be fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre‑emption would cease to exist in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held hereafter. The only exception that could be' recognised. to this proposition would be in favour of cases in which decrees had already been obtained by the pre‑emptors, prior to the notification. In the case of such an existing decree, it could not be said that the pre‑emptor was seeking to enforce his right to pre‑empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification so as to ‑non‑suit plaintiffs who may have filed suits for pre‑emption before the date of the notification as welt as debar all pre‑emptors from instituting suits to enforce their right of pre‑emption in the area in question subsequent to the date of the notification."

The learned counsel for the respondent. No. 1 has also cited the case reported as Ch. Hakam Ali v. Hashu (A I R 1938 Lah. 244) for the proposition that the pre emptor should retain his superior right upto the three stages specified above. The learned counsel for the appellant has on the other hand relied on Sardar Mohindar Singh v. Arur Singh and others (A I R 1922. Lab. 344) and Kaju Mal v. Salig Ram (191PR 1919) for the proposition that a notification made under section 8 (2) of the Punjab Pre‑emption Act will not have the effect .of taking away a right in a pending suit. The contention of the learned counsel for the appellant has no force in. view of the observations of their Lordships of the Supreme. Court in the judgment reported as Mst. Bibi and others v. Miss R. A: Monny and another (PLD 1961SC69). The plaint filed by the appellant was rejected and the appeal against that order has also been dismissed and this appeal was pending therefore, there was no adjudication. as yet made in favour of the appellant. Even if the appeal of appellant is accepted for the reasons stated in the memorandum of appeal the case has to be remanded C back to the trial Court for adjudication on merits. Therefore, there is no adjudication in favour of the appellant which may be said to have created a vested right in his favour so far as to escape the consequences of the effect of notification under section 8 (2) of the Punjab Pre‑emption Act.1 Respectfully following the dictum of their Lordships as laid down in the said judgment of the Supreme Court, this appeal in view of the notifica tion has become infructuous and is hereby dismissed. In the circumstances of the case there will be no order as to costs.

K. M. A. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.