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C.P. No. 215 of 1981

C. P. No. 14 of 1982

Constitutional Petitions Nos. 215 of 1981 and 14 of 1982, decided on 7th August, 1985.

------Art. 9‑‑Constitutional petition ‑‑Laches‑‑Delay simpliciten of a few months, held, would not be per se sufficient ground to dismiss a constitutional petition provided it did not result in miscarriage of justice.

S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 S C M R 367; Yousuf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak) 104; Nusrat Fatima v. Azad Government of the State of Jammu & Kashmir and 2 others P L D 1985 S C (A J & K) 93; Secretary v. Punjab Labour Court No. 2 and another P L D 1976 Lah., 783; Chittagong v. A.K.M. Waliullah Chowdhury P L D 1966 S C 788; S. Zahid Ali v. The Pakistan Ordinance Factories Board Wah Cantt, and another PLD 1971 Lah., 229 and Haji Ghulam Hussain v. Hamid Hassan Khan and another P L D 1969 Lah., 147 ref.

‑‑‑Art. 9‑‑Constitutional petition ‑‑Pre‑emption suit‑‑Orders in respect of suit passed by three competent forums below‑‑Constitutional petition, held, could not be said to be an additional remedy provided under relevant law for re‑examining propriety of orders passed by three forums but a discretionary relief designed to cater for jurisdictional defects involving want of jurisdiction or failure of exercise of jurisdiction‑‑Any inaction, omission or conduct which could indicate that a petitioner was not vigilant and was guilty of negligence or indifference, would disentitle petitioner to constitutional remedy.

‑‑‑Art. 9‑‑Constitutional petition‑‑Exercise of discretionary constitutional jurisdiction likely to prejudice persons not arraigned as parties to petition‑‑Petition, held, had to be dismissed on that ground.

‑‑Art. 9‑‑Pre‑emption‑‑Petitioners‑vendees taking plea that since respondent‑pre‑emptors failed to prove requisite two Talabs, therefore, their suit could not have been decreed‑‑Petitioners neither making any request before tribunal decreeing suit for framing an issue of their plea nor protesting about same‑‑Petitioners, held, would be deemed to have had no wish to press said plea and in constitutional petition High Court would be reluctant to hold that suit proceedings were vitiated on account of non‑framing of an issue which was not requested for by petitioners. ‑‑[ Pre‑emption ] .

‑‑‑Art. 9‑‑Pre‑emption‑‑Right of pre‑emption ‑‑Available whether transaction was a sale or exchange‑‑Consideration of sale partly in kind in form of agricultural land partly in cash‑‑Transaction, held, would be a sale transaction and not an exchange transaction‑‑Even otherwise, an exchange transaction for purpose of claiming right of pre‑emption is equated with a sale transaction and right of pre‑emption in respect thereof could be claimed. ‑‑[Pre‑emption].

‑‑‑Art. 9‑‑Pre‑emption‑‑Right of pre‑emption ‑‑Exchange transaction‑‑If exchange was absolute without reservation, right of pre‑emption could be claimed.

‑‑‑Art. 9‑‑Civil Procedure (Special Provisions) Ordinance (I of 1968), S. 7‑‑Constitutional jurisdiction‑‑Tribunal‑‑Quorum‑‑Petitioners failing to take exception to incomplete quorum of tribunal in their application filed earlier‑‑Petitioners, held, not allowed to raise objection as to quorum in constitutional petition‑‑Presumption is of regularity unless rebutted.

‑‑‑S. 7‑‑Oaths Act (X of 1873), S. 13‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Proceedings before tribunal‑‑Omission to administer oath‑‑Tribunal omitting to write words 'solem affirmation' while recording statements of respondents‑‑Irregularity, held, would not vitiate entire trial as same was curable under S. 13, Oaths Act, 1873.

‑‑‑Art. 9‑‑Civil Procedure (Special Provisions) Ordinance (I of 1968), S.7‑‑Constitutional petition‑‑Contention that petitioners were not given proper opportunity to defend suit, to cross‑examine witnesses and to adduce their evidence‑‑Parties at issue on question of fact‑‑Such question, held, could not be investigated in constitutional petition.

Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others P L D 1983 Quetta 52 ref.

‑‑‑Art. 9‑‑Civil Procedure (Special Provisions) Ordinance (I of 1968), S.5‑‑Constitutional petition ‑‑Pre‑emption‑‑Decree of pre‑emption passed against petitioner‑‑Orders of authorities below, impugned in petition found in consonance with law‑‑Petition dismissed.

Ehsan‑ul‑Haque for Petitioners.

Kh. Safdar Rashid for Respondents Nos. 1 to 3.

Muhammad Yusuf, Asstt.A.‑G. for Respondents.

Dates of hearing: 6th and 7th August, 1985.

‑‑By this common judgment we intend to dispose off the above petitions. The brief facts leading to the filing of the above petitions are as follows:‑--

The petitioners on 6th March, 1974 purchased the suit Agricultural land from the respondents Nos. 4 and 5 in consideration of exchange of certain Agricultural land and payment of certain cash amount. Five mutations were effected on 6th March, 1974. (Annexures 'A‑1' to 'A‑5' are the copies of said mutations). The respondents Nos. 1 to 3 filed a suit for pre‑emption against the petitioners and above respondents Nos. 4 and 5 on 30th May, 1974 before the Assistant Commissioner, Pishin exercising the powers of Deputy Commissioner. Thereupon, the Assistant Commissioner constituted a Tribunal and referred the matter to it. The Tribunal recorded the statement of one Ahmed Jan (who had brought about the above sale transaction between the petitioners and the respondents Nos. 4 and 5 and also the statements of above respondents Nos. 4 and 5. It seems that two of the members gave award in favour of respondents Nos. 1 to 3 i.e; pre‑emptors and two of the members gave award in favour of respondents Nos. 1 to 3 i.e; pre‑emptors sand two of the members gave their dissenting award. However, the President of the Tribunal agreed with the aforesaid two members who gave award in favour of the respondents Nos. 1 to 3 for decreeing of the above suit for pre‑emption. Consequently, the Assistant Commissioner passed a decree of pre‑emption on 25th May, 1977. The petitioners being aggrieved by the above decree filed an appeal which was dismissed by the learned Additional Commissioner, Quetta by his order, dated 31st March, 1980. Against the above order, the petitioner went in revision, which was also dismissed by a learned Member, of the Board of Revenue by his order, dated 14th June, 1981. The petitioners being aggrieved by the above orders have filed the present petition.

‑‑ After the passing of the aforesaid decree or pre‑emption by t e Assistant Commissioner on 25th May, 1977 in favour of the pre‑emptors who are respondents N'os. 5 to 7 in this petition, the petitioners filed a suit on 11th July, 1,977 in the Court of Deputy Commissioner, Pishin for the cancellation of the aforeside sale transaction made by them in favour of the respondents Nos. 1 to 4 (who are petitioners in the above petition), without impleadling the pre‑emptors/decree‑holders i.e; the respondents Nos. 5 to 7. '.The above suit was compromised on 23rd August, 1977, whereby, the above sale transaction was mutually cancelled. After discovering the above fact, the respondents Nos. 5 to 7 filed an appeal against the above decree, dated 23rd August, 1977, which was taken up by the Additional Commissioner, Quetta alongwith the appeal filed by the respondents Nos. 1 to 4 against the decree for pre‑emption. The learned Additional Commissioner by his above common order, dated 31st March, 1980 allowed the respondents Nos. 5 to 7 above appeal but dismissed the respondent Nos. 1 to 4's aforesaid appeal as stated hereinabove in para‑1. The petitioners filed revision against the above order, but the same 'was also dismissed alongwith the aforesaid revision against the maintaining of pre‑emption decree by a common order, dated 14th June, 1981. The petitioners have, therefore, filed the present petition.

3. The result of Constitutional Petition No. 14/82 depends on the result of above Constitutional Petition No. 215/81. We, therefore, intend to take up the above Constitutional Petition No. 215/81 first.

In support of the above petition, Mr. Ehsanul Haq, learned counsel for the petitioners has urged as follows:‑--

(i) That the respondents Nos. 1 to 3 failed to prove the requisite two 'talabs' and, therefore, the suit for pre‑emption could not have been decreed;

(ii) That since it was not a sale transaction but a transaction of exchange of land, a right of pre‑emption could not have been pressed into service by the respondents Nos. 1 to 3;

(iii) That when Ahmed Jan was examined, the quorum of the Tribunal was not complete;

(iv) That the respondents Nos. 4 and 5 were not administered Oath when their statements were recorded; and

(v) That the petitioners were not given fair opportunity to defined the suit,

On the other hand, Khawaja Safdar Rashid, learned counsel for the respondents Nos. 1 to 3 has contended as follows:‑---

(i) That the petition is liable to be dismissed on account of laches coupled with the conduct of the petitioners;

(ii) That the petitioners have not come to this Court with clean hands;

(iii) That since the three competent forums have recorded a finding of fact and this Court cannot interfere with the same in exercise of writ jurisdiction;

(iv) That factually, the transaction was sale, but even if it was to be held that it was an exchange, the pre‑emption law would be attracted to it;

(v) That the quorum was complete when Ahmed Jan was examined;

(vi) That the respondents Nos. 4 and 5 were administered Oath when their statements were recorded. In any case, this is not a defect which would vitiate the trial; and

(vii) That the petitioners were given fair opportunity.

4. It may be pertinent to take up the question of laches coupled with the conduct on the part of the petitioners warranting dismissal of the petition. In this regard, it has been pointed out by Khawaja Safdar Rashid, learned counsel for the respondents Nos. 1 to 3 that the learned Member, Board of Revenue had dismissed the petitioner's revision on 18th June, 1981. The petitioners had obtained copy of the impugned order on 9th July, 1981, but they filed the present constitutional petition on 29th November, 1981 i.e. after the expiry of nearly five months. It has been further pointed out by him that no stay application was moved in the present petition and that the respondents Nos. 1 to 3 had sold a portion of the month of December, 1981 to certain persons and another portion in January, 1982 in favour of four persons, who have not been impleaded as parties.

On the other hand, Mr. Ehsanul Haq, learned counsel for the petitioners has vehemently urged that simpliciter delay of few months does not justify the dismissal of a constitutional writ petition and that there was no laches. He has further submitted that since the petition was pending, any sale made by the respondents Nos. 1 to 3 even in the absence of stay order, would not prejudice the petitioner's right.

5. Khawaja Safdar Rashid, Advocate has referred to the following cases:‑---

(i) S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another reported in 1978 S C M R 367, in which, the Honourable Supreme Court after quoting a passage from the well‑known case, namely, Yousuf Ali v. Muhammad Aslam Zia P L D 1958 S C (Pak) 104 from the judgment of Munir, C.J., held that the aforesaid passage from the above judgment does not mean that a void order is always to be struck down regardless of the consequences of such a decision. It was further observed that a viod order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.

(ii) Nusrat Fatima v. Azad Government of the State of Jammu and Kashmir and 2 others reported in P L D 1985 S C (A J & K) 93. In the above case, the Supreme Court of Azad Jammu and Kashmir observed as follows on the question of laches:‑--

"6. In view of the arguments advanced by the learned counsel for the respective parties and in order to have correct perception of the points involved it must first be ascertained as to what precisely the doctrine of laches means. The doctrine in its essentials is based on the maxim 'Vigilantibus, non‑dormientibus jura subveninut; which means equity aid the vigilant and not indolent or delay defeats equity. The delay which under the given circumstances is considered sufficient to prevent a party from obtaining relief is technically called laches. The High Court would normally, in exercise of its extraordinary writ jurisdiction, refuse its aid to state claims where the claimant by sleeping over his right for a great length of time had acquiesced. As to what length of time, would constitute laches depends upon and varies according to the facts of each individual case. The doctrine will not, however, be applied arbitrarily. The delay, per se, would not normally be a ground for refusal of its aid by the Court. Its application will only be restored to where in the estimation of the Court, it would be unjust to allow the remedy, either because of party as by its conduct done that which might fairly be regarded as amounting to a waiver of it or whereby his conduct and neglect he has though perhaps not waiving that remedy, yet has put the other party in a situation of disadvantage in which it would not be reasonable to place him if the remedies were to be asserted. In either of these situations lapse of time and delay are most important. The principle was followed in Mian Miraj‑ud‑Din v. The Senior Superintendent of Police Lah. P L D 1970 Lah. 569."

On the other hand, Mr. Ehsanul Haq, learned counsel for the petitioners has referred to the following cases:‑---

(i) Punjab Road Transport Board through its Secretary v. Punjab Labour Court No. 2 and another reported in P L D 1976 Lah. 783, in which, it was held by a learned Single Judge of the Lahore High Court that delay of six months in instituting proceedings under Article 199 was not per se sufficient for curtailing a right to file constitutional petition.

(ii) The Collector of Central Excise and Land Customs, West Zone, Chittagong v. A.K.M. Waliullah Chowdhury reported in P L D 1966 SC 788. In the above case, the Honourable Supreme Court repelled the contention of the appellant that there was delay in the filing of the petition. It was held that the last order was passed against the respondent Civil Servant by the Central Board of Revenue on 19th September, 1962, whereas, the constitutional petition was filed on 7th February, 1963 and, therefore, there was no delay in filing of the petition.

(iii) S. Zahid Ali v. The Pakistan Ordinance Factories Board Wah Cantt, and another reported in P L D 1971 Lah. 229, in which, there was delay of about three years in the filing of petition, but the petition was disposed off on merits on the ground that the same was admitted for regular hearing in 1968 and it would not be just to dismiss the same after expiry of several years from the date of admission.

(iv) Haji Ghulam Hussain v. Hamid Hassan Khan and another reported in P L D 1969 Lah. 147, in which, a learned Single Judge of the Lahore High Court has held that delay per se is not sufficient to dismiss the petition under Article 98 of the Constitution and it is only when the petitioner is guilty of delay combined with some conduct on his part, which acts as an estoppel against him that the dismissal of the petition is justified.

6. We are inclined to hold that delay simpliciter of few months may not be per se a sufficient ground to dismiss a constitutional petition, provided it does not result in mis‑carriage of justice, but the delay of few months may justify the dismissal of a constitutional petition if allowing of the same may cause mis‑carriage of justice instead of fostering the cause of justice. The present petition is against the three orders passed by three competent forums in respect of a pre‑emption suit. It may be stated that a constitutional petition is not an additional remedy provided under the relevant law for re‑examining the propriety of the orders passed by three competent forums, but it is a discretionary relief designed to cater for jurisdictional defects involving want oil 4arisdiction or excess of jurisdiction or failure of exercise of jurisdiction etc. Any inaction/omission or conduct which may indicate that a petitioners was not vigilant and was guilty of negligence or indifferent, may disentitle him to the above constitutional remedy. It may be again pointed out that in the instant case, the last order was passed by the learned Member of the Board of Revenue on 18th June, 1981. The petitioners got a certified copy of the order on 9th July, 1981 but filed the above petition on 29th November, 1981 i.e after the expiry of nearly five months. Additionally, they did not file any stay application for the maintenance of status quo in respect of the subject‑matter of petitioner's suit. It has come on record that factually the respondent Nos. 1 to 3 had sold a portion of the land in December, 1981 to certain persons and another portion in January, 1982 to four persons. The mutations were effected in favour of the above purchasers in December, 1981 and January, 1982. The petitioners did not make any application for impleading the above purchasers as parties to the above petition. However, for the first time, an application bearing Civil Miscellaneous No. 271 of 1985 was moved on 3rd June, 1985 requesting for impleading the eleven persons mentioned therein as the respondents on the ground that the respondents Nos. 1 to 3 had maliciously sold certain portions of the land to the above persons. The above application had come up for hearing before us on 6th August, 1985 when the case was fixed for regular hearing. We had dismissed the above application as we were not inclined to implead the above persons as respondents after expiry of about 3/4 years.

7. We are, therefore of the view that in the present case, in view of the changed situation, it will not be just and equitable to exercise constitutional jurisdiction which is a discretionary jurisdiction, exercise of which may prejudice the persons who have not been arraigned as parties to the above petitions. In our view, this is itself a sufficient ground to dismiss the above petition. However, we have examined the merits of the other contentions of the learned counsel for the petitioners.

8. Adverting to Mr. Ehsanul Haq's contention that the respondents Nos. 1 to 3 had failed to prove the two requisite 'talabs', it may be observed that he has referred to the relevant paras of the Plaint of the Suit and the written statement. It has been pointed out by him that the petitioners had denied the factum of 'talabs', and, therefore, it was incumbent upon the respondents Nos. 1 to 3 to have proved the same.

On the other hand, it has been pointed out by Khawaja Safdar Rashid that the petitioners did not press the above plea as when the issues were framed, they did not make any request to the Assistant Commissioner or to the Tribunal to strike an issue on the above plea. He has further pointed out that the petitioners had filed an application on 6th March, 1976 before the Assistant Commissioner complaining about the manner of examination of the witnesses, but did not raise any objection as to the non‑framing of the issue on the above plea. We have inquired from Mr. Ehsanul Haq, learned counsel for the petitioners, whether the petitioners had made any request before the Tribunal for framing of an issue on the above plea or whether the petitioners had protested about the non‑framing of an issue on the above point; his reply was in the negative. The petitioners should have insisted upon the framing of an issue on the above plea before the Tribunal if, in fact, they were serious about their above objection. In the absence of any such insistence or even a request or protest, it will be deemed that the petitioners did not wish to press the above plea. Even otherwise, in constitutional petition, we cannot hold that the suit proceedings were vitiated on account of non‑framing of an issue which was not requested for by the petitioners.

9. As regards the second contention of the learned counsel for the petitioners that since it was an exchange transaction and not a sale, the pre‑emption law could not have been pressed into service, it may be observed that the Tribunal found, as a matter of fact, that the sale consideration was Rs.56,000 and, therefore, it cannot be urged that this was not a sale transaction. The consideration for sale in the instant case according to the learned counsel for the petitioners was partly in kind in the form of agricultural land and partly in cash. Even if this version is to be accepted, it will constitute a sale transaction t and not an exchange transaction. Even otherwise, an exchange transaction for the purpose of claiming right of pre‑emption, is equated with a sale transaction and the right of pre‑emption in respect thereof can be claimed. In this regard, reference may be made to Para. 232 from Mulla Principles of Muhammadan Law, Seventeenth Edition, Page 237, which reads as follows:‑---

"232: SALE ALONE GIVES RISE TO PRE‑EMPTION.

The right of pre‑emption arises only out of a valid, complete and bona fide sale. It does not arise out of gift (Hiba), Sadaqah (section 171), Wakf, inheritance, bequest or a lease even though in perpetuity. Nor does it arise out of mortgage even though it may be by way of conditional sale; but the right will accrue, if the mortgage is for closed. An exchange of properties between two persons subject to an option to either of them to cancel the exchange and take back his property at any time during his life, stands on the same footing as a conditional sale; such an exchange does not extinguish the ownership in the property, and does not give rise to the right or pre‑emption. But if one of the dies without cancelling the exchange, the transaction will mature into two sales and will give rise to the right of pre‑emption. It has been held by the High Court of Allahabad that a transfer of property by a husband to his wife in lieu of dower is a sale, and is, therefore, subject to a claim for pre‑emption. On the other hand, the Chief Court of Oudh has held that the transaction amounts to a Biba‑bil‑Iwaz, and no claim for pre‑emption can, therefore, arise. The right of pre‑emption arises not only out of private sale, but also out of a sale by the Court or a receiver."

10. A right of pre‑emption can be claimed even in case of exchange) provided there is no option given to any of the contracting parites to rescind the transaction. If the exchange is absolute without reservation, the right of pre‑emption can be claimed. In the present case, it is an admitted position that none of the parties to the transaction in question reserved any right to revoke the transaction. In this view of the matter, the respondents Nos. 1 to 3 were entitled to claim right of pre‑emption.

11. Adverting to Mr. Ehsanul Haq's contention that when Ahmed Jan was examined, the quorum was not complete, it may be observed that he has referred to section 7 of Civil Procedure (Special Provisions) Ordinance, 1968 (Ordinance 1 of 1968) which provides that the Tribunal shall not conduct any proceedings unless the President and at least two other Members are present. In this regard, it will suffice to observe that the petitioners in their aforesaid application, dated 6th March, 1976 did not allege that the quorum was not complete though the above application was filed on 6th March, 1976. They cannot be allowed to raise this objection in the writ petition. The presumption is of regularity unless it is rebutted.

12. As regards the contention of learned counsel for the petitioners that the respondents Nos. 4 and 5 were not administered Oath, it may be observed that he had referred to the statements on record which indicate that the words 'solemn affirmation' have not been written. The Tribunal might not have written the above words on account of omission, but even if it is to be held, that factually, the above witnesses were not administered Oath, the above irregularity will not vitiate the entire trial. The same is cureable under section 13 of the Oaths Act, 1873 which provides that no omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which anyone of them is administered, shall invalidate any proceeding. or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.

13. Reverting to the last submission that the petitioners were not given proper opportunity, it may be observed that Mr. Ehsanul Haq, learned counsel for the petitioners has pointed out that the petitioners were not allowed to cross‑examine the above witnesses and secondly, they were not allowed to adduce their evidence.

On the other hand, Khawaja Safdar Rashid, learned counsel for the respondents Nos. 1 to 3 has contended that the petitioners were not prevented from cross‑examining the witnesses, nor they were shut‑out from producing their evidence. It has been submitted that the above respondents Nos. 1 to 3 have denied in their counter‑affidavit that factually the petitioners had filed application, dated 6th July, 19760) for summoning of the witnesses. Khawaja Safdar Rashid has also referred to the case of Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others reported in P L D 1983 Quetta 52, in which, a D.B. of this Court while commenting upon section 42 of the Specific Relief Act, 1877 observed that the above section refers to a Court which means normal law forums. It was further observed that the Tribunal under Ordinance 1 of 1968 is one such forum which is not bound by any law of procedure or evidence and like the Jirga under the erstwhile F. C. R. it may or may not even record the evidence and if recorded, the applicability or otherwise of the same has no criterions and that it depends on the whims of the Tribunal to deny or allow any kind of evidence and the Tribunal is free to pass a verdict on personal knowledge, belief or hearsay.

In our view, it is not necessary to examine the correctness of the view expressed in the above wide terms in the above cited judgment. It will suffice‑t6 observe that since the parties are at issue on the above question of fact, the same cannot be investigated into in constitutional writ petition. The petitioners had three forums under the hierarchy of the relevant law i.e; the Tribunal. The Additional Commissioner as Appellate Authority and Member, Board of Revenue as revisional authority. The above point could have been agitated and examined by the above forums.

For the aforesaid reasons, we find no merit in the above petition and, therefore, it is dismissed with no orders as to cost.

14. As regards Constitutional Petition No. 14 of 1982, it will suffice to observe that since a decree of pre‑emption had already been passed against the petitioners on 25th May, 1977, they or the respondents Nos. 4 and 5 were not competent to file fresh suit on 11th July, 1977 for cancellation of the mutation even without arraigning the decree holders Le; the respondent Nos. 1 to 3 with the object to nullify the above decree and even without disclosing the factum of passing of the decree. The learned Additional Commissioner has rightly accepted the respondents Nos. 1 to 3 appeal by his above order, dated 31st March, 1980. The revisional order maintaining the above appellate order is also in consonance with law.

The above petition has also no merits and is, therefore, dismissed with no orders as to cost.

The above are our reasons in pursuance of short order of even date.

M. Y. H. Petitions dismissed

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