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Civil Revision No. 494 and Civil Miscellaneous No. 1095 of 1986, decided on 3rd December, 1986.

(a) Punjab Preemption Act (I of 1913)‑

‑‑ S. 4‑Right of pre‑emption, nature of‑Effect of improvements carried out by vendee‑Right of pre‑emption being a right of sub stitution, pre‑emptor, is bound to take bargain between vendee and vendor as it stood at date of sale‑Pre‑emptor is bound to compensate vendee for improvements effected by him on purchased property, only, if same were made bona fide‑Where despite notice of claim by pre‑emptor, and protest raised, vendee still effected improvements, his claim to compensation for such improvement, would be open to grave doubts.

Arshad Ali and another v. Abdul Rashid and 2 others P L D 1980 Lah. 382 ref.

(b) Punjab Pre‑emption Act (I of 1913)‑

S. 21‑Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2‑Pre‑emption suit‑Interim injunction earlier granted to pre‑emptor restraining vendee from making improvements, on purchased land withdrawn on statement of vendee's counsel that such vendee would carry out improvements at his own risk and cost‑Validity of with drawal of injunction order‑Unless pre‑emptor succeeded in having his right established in Court, complied with terms of decree, and deposi ted decretal amount, title to property, held, would remain vested in vendee who could not be deprived of user of his property‑Undertak ing on vendee's part of effecting improvements at his own risk was quite sufficient to safeguard interest of pre‑emptor and to entitle vendee to claim discharge of the injunction.

Maharaja Bahadur Sing v. Seth Hukum Chand A I R 1923 Pat. 209 and Ahmed Din v. Faiz Ali P L D 1954 Lah. 414 ref.

(c) Civil Procedure Code (V of 1"8)‑

‑‑ S. 115 & O. XXXIX, Rr. 1 & 2‑‑Punjab Pre‑emption Act (I of 1913), S. 21‑Revisional jurisdiction‑‑Orders of two Courts below, result of proper and judicious discharge of discretion ‑Revisional

jurisdiction to interfere with discretionary jurisdiction of Courts below declined by High Court.

Hafiz S. A. Rehman for the State.

Date of hearing : 3rd December, 1986.

I am asked to take action on the revision side because the Court below has allowed the vendee‑defendant to raise construction on the property purchased by him from defendant No. 2. Facts which gave rise to the application in brief are :‑

One Fazal Rahim sold 1 Kanal 5 Marlas of land to Rehmat Khan. Muhammad Akram, as a collateral, co‑sharer and owner of the estate, pre‑empted the sale and brought a civil suit in the Court of Civil Judge, Jhelum. Alongwith the plaint, an application under Order XXXIX, Rules 1 and 2, C. P. C. for issue of a restraining order prohibiting the defendant vendee from raising construction on the property as also from altering its character, was put in. Application was contested by the vendee. Grounds taken in opposition to the issue of a restraining order are available in application moved under Order XXXIX, Rule 4, C. P. C. which has been placed on the file of this Court. On 21‑10‑1986, Court accepted the application of the defendant and vacated the restraining order earlier issued by it. Reading of the order shows that the defendant's counsel had given an undertaking that the proposed construction on the property in suit shall be raised on the risk and cost of the defendant, and, in case, Court found for the pre‑emptor and decreed his suit, defendant would lay no claim to compensation for improvements. Court relied on the statement of the counsel and vacated the restraining order as observed above. Pre‑emptor was not satisfied by the action taken by the trial Court on his application for temporary injunction and took the matter in appeal before learned District Judge Jhelum. However, the appeal was heard by learned Additional District Judge. who, after examination of the merits of the case as also the effects of undertaking given by the defendants did not find much merit in the appeal and dismissed the same on 11‑11‑1986. This brings the plaintiff to this Court in an application under section 115, C. P. C.

Hafiz S. A. Rehman, Advocate, on behalf of the petitioner referred to the decision in Arshad Ali and another v. Abdul Rashid and 2 others P L D 1980 Lah. 382, to contend that the vendee was not authorised to make permanent improvements on the property and to alter its character so as to affect eventual success of the pre‑emptor. It was argued that till such time that the pre‑emption suit was adjudicated upon on its merit, status quo should be ordered to be maintained so that neither party suffers any damage to his rights. Learned counsel also submitted that counsel for the defendants was not authorised to give an undertaking on behalf of his clients and the latter may not feel bound by what was said at the bar by their counsel. I am afraid, it is not possible for me to accept the contentions, for in my view, they are totally devoid of serious merit. It is well‑settled statement of law that right of pre‑emption being a right of substitution, the pre A emptor is to take the bargain as it stood at the date of sale nothing more and nothing less. As to the improvements effected by the vendee on the property purchased by him, pre‑emptor is bound to compensate him only if they are made bona fide. But. where despite notice of claim by the pre‑emptor, and, protest raised, vendee still goes on to improve on the property, his claim to compensation may become open to grave doubts I. The issue in regard to the right of vendee, to make improvements came up for consideration before this Court in Muhammad Skafl, etc. v. Kaneez Zohra Bibi (1) Mr. Justice Aftab Hussain, as his Lordship then was. examined the issue and observed "in a suit for pre‑emption, the defendant‑vendee has an absolute right to enjoy his possession of the area in dispute for so long as the decree for pre‑emption is not passed against him and is not executed. The reason is that he remains full owner of the property. If he makes any improvement before he comes to know about the pendency of a suit for pre‑emption, the pre‑emptor is bound to re imburse him for the cost of improvement made before that time. If, however, any defendant persists in making improvements after attaining knowledge about the suit for pre‑emption, he does so at his own risk. He cannot claim reimbursement, but can only be allowed to take away or remove the material which he has used in making the improvements provided it is separable. In either case, an injunction order cannot be passed against him restraining him from making the improvements since it would interfere

with his right to enjoy the property in dispute and the balance of convenience would be against the issuance of such injunction. Moreover, if the injunction is not issued, the plaintiff cannot suffer any loss or injury much less any irreparable loss or injury." However, in a later decision of this Court in Arshad All and another v. Abdul Rashid and 2 others, a discordant note was struck and the Court took the view that the pre‑emptor was entitled to the restraining order prohibiting the vendee from altering the character of the property, subject‑matter of the pre‑emption suit, and also from making any improvements thereon. Relevant observations of the Court are available in paras 7 to 9 of the Report. These read "'There is much force in the contention of the learned counsel for the appellants. Obviously any improvement which tends to change the very nature and character of the suit land is not permissible. The principle of law laid down in Municipality of Tando Adam v. Khair Muhammad and others (2) "It is true that Courts, as a general rule, refuse to interfere by way of injunction to restrain a defendant from making such use as he may think fit of the property of which he is in possession. But in certain cases the Court would interfere with the rights of the defendant. It would certainly interfere when the defendant contemplates destruction of the corpus", is an established proposition and that I am in respectful agreement thereof. On the question regulating the grant or otherwise of the temporary injunction the learned counsel for the respondents relied upon Maharaja Bahadur Singh v. Seth Hukum Chand (3) and Ahmed Din v. Faiz All (4) and contended that the learned Trial Court has rightly refused to grant the ad interim injunction to the appellants. I have, however, failed to understand how these decisions advance the case of the respondents any further. After hearing the learned counsel for the parties at some length, I have arrived at the irresistible conclusion that the appellants have established a good prima facie case and any change in the nature and character of the suit land is bound to cause them great inconvenience in addition to causing irreparable loss and injury, whereas the respondents are not likely to suffer any inconvenience or irreparable loss, if such an injunction is granted. I, therefore, accept the appeal, set aside the order passed by the learned Civil Judge and direct that, during the pendency of the suit, the respondents shall not change the nature and character of the suit land either by themselves or by selling it for building purposes".

(1) 1983 C L C 2541 (2) A I R 1925 Sind 260

(3) A I R 1923 Pat. 209 (4) P L D 1954 Lab.

414

It appears that the earlier judgment of the Court in Muhammad Shafi's case was not brought to the notice of his Lordship. It is not an appropriate occasion for me to examine as to which view is correct, the one expressed in Muhammad Shafi etc. v. Kaneez Zohra Bibi ; or that enunciated in Arshad Ali and another v. Abdul Rashid and 2 others and I leave its consideration to some other occasion. That notwithstanding, unless the pre‑emptor succeeds in having his right established in a Court of law, complies with the terms of decree and deposits the decretal amount, the title to the property remains vested in the vendee and he cannot be deprived of the user of his property. No doubt the vendee cannot, by making improvements on the property, make it impossible for a poor pre‑emptor to pre‑empt the property. Bona fides of the vendee as also the laches of the pre‑emptor are the guiding principles in the matter. In this case, the defendant‑vendee appearing through a counsel has given an undertaking to the Court that improvements shall be made at his own risk and cost and that in case he was deprived of the property in the result of a Court decree, he shall not claim any l compensation for the improvements made by him meanwhile. This under taking on his part, should, in my opinion, be quite sufficient to safeguard the interests of the pre‑emptor and to entitle the defendant‑vendee to claim a discharge of the injunction. The pre‑emptor, would not in any way suffer by the injunction being withdrawn while the loss to the defen dant if the injunction is allowed to remain in force would be enormous and may not be repaired if the suit was eventually dismissed. Fears expressed in the course of hearing of the civil revision come out to be more imaginary than genuine. Applicant's interests have been amply safeguarded. After hearing the learned counsel at length and examination of the case law cited at the bar, I am of the firm opinion that the action taken by the two Courts below was surely the result of a proper and judicious exercise of discretionary jurisdiction and the impugned orders do not call for further interference by this Court in its revisionary jurisdic tion. In result, revision fails and is dismissed summarily.

A. A. Revision dismissed.

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