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Regular Second Appeals Nos. 107 and 108 of 1981, decided on 21st March, 1983.
‑‑‑ Para. 25‑Pre‑emption, superior right of‑Superior right of pre-emption not available to tenant of land on date when sale of land took place ‑Such right accruing to tenant during pendency of proceedings by virtue of M. L R. 115‑Tenant could challenge superior right of pre‑emption of collateral of vendors ‑ Tenant, held, not debarred from raising such plea in order to defeat collateral pre emptor's suit.
‑ Ss. 4 & 15 Land Reforms Regulation, 1972 (M. L. R. 115), para. 25‑Pre‑emption‑Preferential right‑Pre‑emptor in order to successfully set up a claim for pre‑emption, held, had to show that he had a preferential right all along Proceedings i. e. on date of sale, on date of suit and on date of decree‑Plaintiff having a preferential right of pre‑emption on date of sale but not retaining same at time of filing of suit as in meantime tenant, a superior contender, had come in field through M. L. R. 115‑Being tenant at time of suit and also at time of decree he had a superior claim of pre‑emption over respondent‑Suit of respondent dismissed in circumstances.
‑ para. 25 ‑Punjab Pre‑emption Act (I of 1913), Ss. 4 & 15‑Right of pre‑emption Improvement of existing right or creation of a fresh right, held, could not be differentiated and could be equally employ ed to defeat claim of pre‑emption if pre‑emptor was not able to sustain his superior right throughout three important stages i. e. date of sale, date of suit and date of decree.
‑ O. LXI, r. 33 and S. 100‑A‑ppeal ‑Scope‑Pleadings‑Absence of plea of negligence and contumacy in pleadings appellate Court, held, was competent to go beyond pleadings of parties even when no cross‑objections filed.
_‑ Para. 25‑Punjab Pre‑emption Act (I of 1913), Ss. 4 & 15‑Civil Procedure Code (V of 1908), S. 100‑Pre‑emption suit‑Contumacy and negligence of plaintiff‑pre‑emptor can be looked into even at stage of second appeal as a finding against plaintiff in such a case would make suit incompetent and result in rejection of plaint.
‑ Para. 25‑Punjab Pre‑emption Act (I of 1913), Ss. 4 & 15 Civil Procedure Code (V of 1908), S. too‑pre‑emption suit Contumacy‑Plaintiff‑pre‑emptor instituting suit on last date of limitation with a ridiculously low fee of Rs. 15 without any regard to actual valuation of property‑Negligence of plaintiff and contumacy was evident from record‑Suit of plaintiff, held, could be dismissed on this ground alone.
Mirza Manzoor Ahmad and Mirza Aziz Akbar Baig for Appellant.
Rana Abdur Rahim for Respondent.
Date of hearing : 21st March, 1983
This judgment will dispose of the following appeals as common ques tions of law and facts are involved
(1) R. S. A. 1.07/81.
(2) R.S. A. 108/81.
2. The brief facts of the case are that the respondent brought a suit for pre‑empting the sale of the land in question which took place in one case on 28‑3‑1972 and in the other on 25‑4‑1972, within the period of limitation although on the last day of it on the grounds of being collateral of the vendors. The appellant resisted the suit and disputed the superior right of pre‑emption of the respondent on the ground that the appellant as tenant to the land had a superior right of pre‑emption under M. L. R. 115. This contention was accepted by he trial Court and the suit was dismissed. In appeal the learned District Judge. Multan decreed the suit when he reversed the finding on issue No. 4 holding that the tenant had no preferential right of pre‑emption in March, 1972 when the sale took place as the M. L. R. 115 gave benefit to the tenants only in Kharif 1972. The present appeal is directed against this finding of the appellate Court and also raises the question of contumacy wh.ch according to him, the plaintiffs had been guilty of, although the two Courts below have found this issue against the plaintiff.
3. The M. L. R. 115 came into force with effect from Kharif 1972 and the first right of pre‑emption was given to the tenants only on that date. On 28‑3‑1972 and 25‑4‑1972, therefore, the tenant had no right of pre‑emption by which he could challenge the superior right of pre‑emption of the respondent who was admittedly a collateral of the vendors, But this doss not mean that, if such a right accrued to the tenant during the pendency of the proceedings the tenant can be debarred from raising this plea in order to defeat the pre‑emptor's claim. The pre‑emptor in order to successfully set up a claim for pre‑emption has to show that he had a preferential right all‑along the proceedings, on the date of sale. on the date of the suit and on the date of the decree. In the present case, the plaintiff‑respondent had a preferential right of pre‑emption on the date of sale but he was not able to retain this right at the time of filing of the suit as in the meantime a superior contender had come in the field through M. L. R. 115. At the time of suit and also at the time of the decree the present appellant was admittedly the tenant in the land who had a superior claim of pre‑emption over the plaintiff and was, therefore, fully armed, to resist the claim of the plaintiff of being superior, in right o pre‑emption.
4. The learned counsel for the respondent has vehemently argued, that while he cannot deny the proposition that a defendant can improve his claim during the proceedings of a suit. yet an improvement can be made only if a right was in existence. I am, however, not in a position to accept this contention. The improvement of an existing right or the creation of a fresh right cannot be differentiated and can be equally employed to defeat the claim of a pre‑emptor if the pre‑emptor is not able to sustain his superior right throughout the three important stages of litigation. I am, therefore, quite clear in my mind that the suit for pre‑emption could not be decreed as the superior right of pre‑emption claimed by the plaintiff could not be maintained during the proceedings of the suit on account of the coming into force of M. L. R. 115.
5. The learned counsel for the appellant has also pointed out that the conduct of the plaintiff has been contumacious and negligent and his suit could be dismissed on that short ground alone. Against this the learned counsel for the respondent has argued that since there was a concurrent finding of the Courts below in favour of the respondent, this question cannot be reopened in second appeal. In reply to this the learned counsel for the appellant has referred to the provisions of Order XLI, rule 33, C. P. C. under which the appellate Court is competent to go beyond the pleadings of the parties even when no cross‑objections have been filed. In my view there is lot of force in the arguments of the learned counsel for the appellant on this ground ac well and the contumacy and negligence of the plaintiff can be looked into even at the stage of second appeal as a finding against the plaintiff in such a case will make the suit incompetent and result in rejection of the plaint. The negligence and contumacy of the plaintiff is evident from the record. The suit was instituted on the last date of limitation with a ridiculously low court‑fee of Rs. 15 without any regard to the actual valuation of the suit property. It took full two years for the plaintiff to arrange the schedule of net profits and be made up the court‑fee only in 1975 and during all this period he never cared to apply to the Court for extension of time for making up the court‑fee. Such a conduct is contumacious and negligent and I am in agreement with the learned counsel for the appellant that the plaintiff's suit could be dismissed on this ground alone.
In view of the above consideration, the appeal is allowed with costs and the plaintiff's suit dismissed.
M.Y.H. Appeals allowed.
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