PLJ 2013 SC (AJ&K) 172
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present:
Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia, Raja Saeed Akram Khan & Sardar Muhammad Sadiq Khan, JJ.
Mst. SARDAR
BEGUM--Appellant
versus
REHMAT KHAN
& 11 others--Respondents
C.A. No. 19 of
2006, decided on 1.10.2012.
(On appeal from
the judgment of the High Court dated 29.9.2005 in Civil Appeals No. 136 &
137 of 2004)
AJ&K Right
of Prior Purchase Act, 1993--
----S.
20-A--AJ&K Interim Constitution Act, 1974, S. 4(13)--Suit for possession
through right of prior purchase--Amendment--Inserted of S. 20-A--Improvement in
status of vendee--Effect of--When right was vested, it cannot be taken away by
subsequent legislation--Improvement of the status by a vendee for defeating a
lawful right of prior purchase vested under the provisions of Prior Purchase
Act, in a plaintiff was not recognized by the Islam--It cannot be termed as
just, morally correct, consonant with the rules of law and the principles of
rules of positive law--No right accrued to the vendee under the provisions of
the Right of Prior Purchase Act, 1993. [P.
177] A
Interpretation
of Statutes--
----Substantive
rights--It is well-established principle of the interpretation of the statutes
that the law affecting substantive rights of the persons cannot have a
retrospective effect unless it is so provided in the Act, it is or it could be
established by necessary intendment. [P.
178] B
AJ&K Right
of Prior Purchase Act, 1993--
----S.
14--Amendment--Supreme Court observed that all those cases which were filed
prior to the amendment in Section 14, would continue to be governed under the
un-amended provisions and operation of new Section 14 of the Right of Prior
Purchase Act shall be prospective. [P.
180] C
AJ&K Right
of Prior Purchase Act, 1993--
----S.
20-A--Punjab Pre-emption Act, 1913, S. 21-A--Right of pre-emptor except by
inheritance--Effect--Question of--Whether any right vested in vendee prior to
insertion of S. 20-A in Right of Prior Purchase Act--An amendment was brought
in the year 1944 whereby Section 21-A was inserted to the effect that
improvement of the status by the vendee after filing of the suit will not
affect the right of pre-emptor except by inheritance or succession--Subsequently,
in the light of the judgment of the Shariat Appellate Bench, Punjab Pre-emption
Act, 1913 was repealed and replaced by the Act of 1991 wherein, instead of
Section 21-A, Section 22 was inserted and the words "other than through
inheritance or succession" were deleted. [P.
180] D
Punjab Pre-emption
Act, 1913--
----S.
21-A--Superior right of pre-emption--It was settled that a pre-emptor must have
superior right of pre-emption at three stages; at the time of sale, at the time
of institution of the suit and at, the time of decree of the first Court--It
was due to the reason that the vendee might improve his status or plaintiff
might lose his superior right of pre-emption due to any other cause before
passing the decree. [P. 181] E
Punjab Pre-emption
Act, 1913--
----S.
21-A--Improvement of status by vendee after filing of suit was fatal for
pre-emptor--Validity--If by improving his status the vendee becomes a co-sharer
or his right becomes equal to the plaintiff-pre-emptor, then his suit was liable
to be dismissed but after the insertion of Section 21-A through an amendment,
the position changed and it is consistent view of the Courts that a vendee can
improve his status before the filing of the suit but he cannot improve the same
after the filing of the suit. [Pp.
181 & 182] F
AJ&K Right
of Prior Purchase Act, 1993--
----S.
20-A--Punjab Pre-emption Act, 1991, S. 22--Improvement made in status of
vendee--Amendment--Effect--Right of pre-emptor--It is established law that the
pre-emptor has to establish the right of pre-emption at three stages, i.e. at
the time of sale, at the time of filing the suit and at the time of first
decree--Plaintiff must, have a right of pre-emption at three stages was not a
creation of statute nor was it incorporated in any of the provisions of the
Right of Prior Purchase Act--Similarly the improvement of status is not
recognized by any of the provisions of the Right of Prior Purchase
Act--Plaintiff had a right of pre-emption at the time of sale, at the time of
institution of suit and also at the third stage, i.e, at the time of decree,
because prior to reaching the third stage Section 20-A had been incorporated in
the Prior Purchase Act, which provides that improvement of status by the
vendee-defendant shall not affect the right of plaintiff in such suit. [Pp. 182 & 183] G & H
AJ&K Right
of Prior Purcahse Act, 1993--
----S.
20-A--Improvement of status prior to institution of suit--Effect--By improving
the status prior to the institution of suit, the vendee-defendant becomes co-sharer
in the suit land but after filing of the suit the improvement of status shall
not affect the right of the plaintiff in the such suit--After the insertion of
Section 20-A in Right of Prior Purchase Act, the vendee-defendant cannot
improve the status after filing of the suit and improvement of status shall not
affect the right of pre-emptor-plaintiff in the suit--After insertion of
Section 20-A in the Right of Prior Purchase Act, the status improved by the
defendant will not affect the right of prior purchase of the defendant,
therefore, the appeal was accepted. [Pp.
184 & 185] I, J & K
Ch. Muhammad
Afzal, Advocate for Appellant.
Mr. Abdul Majeed
Mallick, Advocate for Respondents.
Date of hearing:
28.5.2012
Judgment
Muhammad Azam
Khan, C.J.--The captioned appeal with leave of the Court arises out of a
judgment of the High Court dated 29.9.2005 whereby Civil Appeals. No. 136 and
137 of 2004, filed by the appellant, herein, have been dismissed.
2. The facts necessary for disposal of the
appeal are that the appellant filed a suit for possession through the right of
prior purchase in respect of land Measuring 17 marla,
comprising Survey No. 668. Khewat No. 26/24, situate in village Joeyan, Tehsil
Mirpur, in the Court, of Civil Judge Mirpur on 7.5.1992. The sale-deed was
executed in favour of Respondent No. 1 by respondents
No. 2 to 11. During pendency of the suit Respondent No. 1 got a gift-deed of
land measuring 5 marla from the same khewat and became
co-sharer. The appellant challenged the said gift-deed through another suit. At
the conclusion of the trail, the trial Court decreed the pre-emption suit while
the other suit filed by the appellant was dismissed. Both the appellant and
Respondent No. 1 filed separate appeals in the Court of District Judge Mirpur.
The District Judge dismissed the appeal filed by the appellant while the appeal
filed by Respondent No. 1 was accepted. Dissatisfied from the judgment decree
of the District Judge, the appellant filed two separate appeals in the High
Court. A learned single Judge in the High Court dismissed the appeals through
the impugned judgment on 29.9.2005, hence this appeal by leave of the Court.
3. Ch. Muhammad Afzal advocate for the
appellant, argued that the sale-deed was executed on 7.5.1-991. The suit was
filed on 7.5.1992. The defendant-respondent procured the gift-deed in his
favour for the purpose of improving the status on 19.1.1995. The decree was
passed on 27.4.2000. The pre-emptor must have a right of prior purchase, at
three stages; at the time of sale, at the time of filing of the suit and at the
time of decision of the trial Court to obtain a decree Section 20-A of the
Right of Prior Purchase Act was incorporated during pendency of the suit
barring the vendee from improving the status, therefore, the gift-deed doesn't
create right in the defendant. The learned counsel contended that the learned
single Judge in the High Court has dismissed the appeal while relying upon the
judgment of this Court delivered in the cases relating to the amendment brought
in Section 14 of the Right of Prior Purchase Act, which is not relevant for the
decision of the instant case. He contended that after insertion of Section 20
-A in the Right of Prior Purchase Act, improvement of status by the vendee
after filing of the suit is not helpful to the case of the defendant. The
learned counsel referred to the cases reported as Ghulam Farid & others vs.
Mehmood Akhtar & others [PLD 2010 SC 608], Aqal Hussain vs. Muhammad Aslam
Khan [PLD 2004 AJ&K 17] and a recent judgment of this Court recorded in the
case titled Muhammad Saleem Khun v/s Mst. Muqarab Jan & another (Civil
Appeal No. 45 of 2008, decided on 3.5.2011).
4. While
controverting the arguments of the counsel for the appellant. Mr. Abdul Majeed
Mallick, advocate for the respondents, argued that the judgment of the High
Court is perfectly legal. After obtaining the gift-deed in his favour from the
same khewat the rights of the defendant have become equal to those of the
plaintiff, therefore, the suit filed by the plaintiff was liable to be
dismissed. The learned counsel contended that the acquisition of gift is a
statutory right and a right cannot be taken away through amendment giving it
retrospective effect. Where rights are vested in a party, the effect of the
amendment is always prospective and not retrospective. The learned counsel
referred to and relied upon Pages No. 109, 169, 622 and 767 of the Crawford's
book on "Statutory Construction, Interpretation of Laws". He also
referred to pages No. 1322 and 1323 of the Black's Law Dictionary (sixth
edition) for defining the word "right".
5. The learned counsel forcefully argued that
the Constitution guarantees the rights in property. Section 4(13) of the Azad
Jammu & Kashmir Interim Constitution Act, 1974 deals with the right to
property. The learned counsel also referred to and relied upon the cases
reported as Adnan Afzal vs. Capt. Sher Afzal [PLD 1969 SC 187], Muhammad
Rafique vs. Federation of Pakistan through Secretary Law, Justice & Human
Rights Division. Islamabad & another [PLD 2005 Lahore 150], Eid Muhammad
vs. Khan Nazir Ahmed Khan & another [PLD 1966 (W.P.) Lahore 1041], Mian
Arif Iftikhar & others vs. Commissioner Lahore Division & others [PLD
1969 (W.P.) Lahore 53], Messrs Khaliq and Najam Company vs. Sales Tax Officer,
B-Ward, Lahore & another [PLD 1959 (W.P.) Lahore 915] and Fazal Dad vs.
Khadim Hussain & another [1995 MLD 1299]. The learned counsel submitted
that the respondents obtained a gift-deed from the same khewat. The plaintiff
challenged the said gift-deed through separate suit which has been dismissed.
The gift-deed is still intact and the defendant is a co-sharer in the khewat.
When rights of the plaintiff, pre-emptor and the defendant are equal, no right
of prior purchase is available to the plaintiff-appellant. The learned counsel
requested for dismissal of the appeal.
7. We have heard the learned counsel for the
parties and perused the record.
8. The sale-deed was executed on 7.5.1991. The
suit for pre-emption was filed on 7.5.1992. During pendency of the suit the
defendant procured a gift-deed from the same khewat on 19.1.1995. On 15.7.1998 through an amendment in the Prior Purchase Act.
Section 20-A was inserted providing that any improvement made in the status of
the vendee-defendant after institution of the suit for pre-emption shall not
affect the right of pre-emptor-plaintiff in such suit. The suit was decreed on
27.4.2000. The main question which needs determination is that what is the
effect of improvement of status by the vendee after filing of the suit and
insertion of Section 20-A before passing the decree. The main argument of Mr.
Abdul Majeed Mallick, advocate for the respondents, is that the
vendee-defendant improved the status after filing the suit and prior to
insertion of Section 20-A in the Prior Purchase Act. After improvement of
status by the vendee a right has been vested in the defendant and when a right
has been vested, it cannot be taken away by a subsequent legislation. The right
is guaranteed under Section 4(13) of the Azad Jammu & Kashmir Interim
Constitution Act, 1974. The amendment in the Act was brought after improvement
of status. It cannot operate retrospectively.
9. What is a `right', it has been defined in the
Black's Law Dictionary (sixth, edition) at pages 1323 and 1324, as under:--
"Right. As a noun and
taken in an abstract sense, means justice, ethical correctness or consonance
with the rules of law or the principles of morals. In this signification if
answers to one meaning of the Latin "Jus" and serves to indicate law in
the abstract, considered as the foundation of all rights, or the complex of
underline moral principles which impart the character of justice to all
positive law, or give it an ethical content. As a noun and taken in a concrete
sense, a power, privilege, faculty or demand, inherent in one person and
incident upon another. Rights are defined generally as "powers of free
action". And the primal rights pertaining to men or enjoyed by human
beings purely as such, being grounded in personality and existing antecedently
to their recognition by positive law. But leaving the abstract moral sphere and
giving to the term a juristic content a "right" is well defined as
"a capacity residing in one man of controlling, with the assent and
assistance of the State, the actions of others".
As an adjective, the term
"right" means just, morally correct, consonant with ethical
principles or rules of positive law. It is the opposite of wrong, unjust,
illegal.
A power, privilege, immunity,
guaranty under a constitution, statutes or decisional laws, or claimed as a
result of long usage. See Bill of Rights: Civil Liberties; Civil Rights Acts;
Natural Rights.
In a narrower
signification, an interest or title in an object of property; a just a legal
claim to hold, use, or enjoy it, or to convey or donate it. as he may please.
A legally enforceable claim of one
person against another, that the other shall do a given act, or shall not do a
given act. Restatement of the law of property.
That
which one person ought to have or receive from another it being withheld from
him, or not in his possession. In this sense "right" has the
force of "claim" and is properly expressed by the Latin
"Jus".
The dictionary
meaning of the word `right', apart from the other, means justice, ethical
correctness or consonance with the rules of law or the principle of morals. Its
opposite is wrong, unjust and illegal. The improvement of the status by a
vendee for defeating a lawful right of prior purchase vested under the
provisions of Prior Purchase Act in a plaintiff is not recognized by the Islam.
It cannot be termed as just, morally correct, consonant
with the rules of law and the principles of rules of positive law. No right
accrued to the vendee under the provisions of the Right of Prior Purchase Act,
1993. In the case reported as Haji Rana Muhammad Shabbir Ahmed Khan vs.
Government of Punjab Province, Lahore [PLD 1994 SC 1] it is observed that
improvement of the status for defeating a lawful right is not recognized by the
Islamic injunctions. In para 43 of the judgment, it is observed as under:--
"43. A
careful study of the relevant details in the books of Islamic Jurisprudence
makes it clear that the Muslim Jurists are of the opinion that any improvement
in the status of the vendee after the institution of the suit does not defeat
the right of pre-emptor, no matter whether the improvement was made by an
intentional act of the vendee or has taken place according to some natural
event, like succession."
10. It is well-established principle of the
interpretation of the statutes that the law affecting substantive rights of the
persons cannot have a retrospective effect unless it is so provided in the Act.
It is or it could be established by necessary intendment. In the case reported
as Adnan Afzal vs. Capt. Sher Afzal [PLD 1969 SC 187], it was observed as
under:--
"The
general principle with regard to the interpretation of statutes as laid down in
the well-known case of the Colonial Sugar Refining Company Ltd. vs. Irving 1905
A.C. 369 is that "if the matter in question be a matter of procedure
only" the provisions would be retrospective. "On the other hand, if
it be more than a matter of procedure, if it touches a right in existence at
the passing of the Act", then "in accordance with a long line of
authorities extending from the time of Lord Coke to the present day", the
legislation would not operative retrospectively unless the Legislature has
either "by expressed enactment or by necessary intendment" given the
legislation retroactive effect.
To the same
effect are the observations of Jessel, Master of the Roles, in the case of In
re: Joseph Suche and Co. Ltd. (1875) 1 Ch. D. 48 where it was observed that as
"a general rule when the Legislature alters the rights of parties by
taking away or conferring any right of action, its enactments, unless in
expressed terms they apply to ponding actions, do not affect them. It is said
that there is one exception to that rule, namely, that, these enactments merely
affect procedure and do not extend to rights of actions, they have been held to
apply to existing rights".
The question for
consideration there was regarding the right of a secured creditor of a company
to prove for the full amount of his debt without deducting the value of his
securities in the course of the winding up, That was held to be, in substance,
a right of action for the recovery of a debt and, therefore, Section 10 of the
English Judicature Act was hold not to apply retrospectively.
The principle
has been admirably put by Crawford in his book on Construction of Statutes,
1940 edition, page 581, as follows.--
`As a general
rule, legislation which relates solely to procedure or to legal remedies will
not be subject to the rule that statutes should not be given retroactive
operation. Similarly, the presumption against retrospective construction is
inapplicable. In other words, such statutes constitute an exception to the rule
pertaining to statutes Generally. Therefore, in the
absence of a contrary legislative intention, statutes pertaining solely to
procedure or legal remedy may affect a right of action no matter whether it
came into existence prior to, or after the enactment of the statute. Similarly,
they may be held applicable to proceedings pending or subsequently commenced.
In any event, they will, at least, presumptively apply to accrued and pending
as well as to future actions.'
This principle
has also been fully adopted by this Court in the cases of The State vs.
Muhammad Jameel [PLD 1965 SC 681] and Muhammad Alam vs. The State [PLD 1967 SC
259].
The next
question, therefore, that arises for consideration is as to what are matters of
procedure. It is obvious that matters relating to the remedy, the mode of
trial, the manner of taking evidence and forms of action are all matters
relating to procedure. Crawford too takes the view that questions relating to
jurisdiction over a cause of action, venue, parties, pleadings and rules of
evidence also pertain to procedure, provided the burden of proof is not
shifted. Thus, a statute purporting to transfer jurisdiction over certain
causes of action may operate retroactively. This is what is meant by saying
that in change of forum by a law is retrospective being a matter of procedure
only. Nevertheless, it must be pointed out that if in this process any existing
rights are affected or the giving of retroactive operation cause inconvenience
or injustice, then the Courts will not even in the case of a procedural
statute, favour an interpretation giving retrospective effect to the statute.
On the other hand, if the new procedural statute is of such a character that
its retroactive application will tend to promote justice without any
consequential embarrassment or detriment to any of the parties concerned, the
Courts would favorably incline towards giving effect to such procedural
statutes retroactively."
In the case
reported as Messrs Khaliq and Najam Company vs. Sales Tax Officer, B-Ward,
Lahore & another [PLD 1959 [W.P.) Lahore 915] it was observed in para 10 of
the judgment as under:--
".......I
have said in an earlier part of this order that it is a well-established
cannon of interpretation of statutes that in the absence of clear language to
that effect, a statute is to be presumed not to be retrospective in operation
unless it deals with matters of procedure."
In the case
reported as Mian Arif Iftikhar & others vs. Commissioner, Lahore Division & others [PLD 1969 (W.P,)
Lahore 53] it
was observed that language of the statute must be clear. We cannot go beyond it
to find out the so-called intention. That would amount to legislating
ourselves.
In the case
reported as Eid Muhammad vs. Khan Nazir, Ahmed Khan & another [PLD 1966
(W.P.) Lahore
1041], it was observed at page 1046 of the reported as under:--
"......The
amendment doesn't say that it will have retrospective effect. It is a well
established principle of the Interpretation of Statutes that law affecting the
substantive rights of the persons cannot have a retrospective effect unless it
is so provided in the Act itself or it could be established by necessary
intendment. There is nothing in the amendment to suggest that the legislature
intended that it should be retrospective in operation."
The case
reported as Muhammad Rafique vs. Federation of Pakistan through Secretary Law. Justice and Human Rights Division. Islamabad & another [PLD 2005 Lahore 150] also lays down the same law that the procedural law has the
retrospective effect. The law, which affects vested rights, is always
prospective.
Similarly in the
case reported as and Fazal Dad vs. Khadim Hussain & another [1995 MLD 1299]
while dealing with the amendment of Section 14 of the Right of Prior Purchase
Act, this Court observed that all those cases which were filed prior to the
amendment in Section 14, shall continue to be governed under the un-amended
provisions and operation of new Section 14 of the right of Prior Purchase Act
shall be prospective.
11. In the light of the above observations we
have looked into the controversy that whether any right vested in the
vendee-defendant prior to the insertion of Section 20-A in the Right of Prior
Purchase Act or not. In the Punjab Pre-emption Act, 1913, an amendment was
brought in the year 1944 whereby Section 21-A was inserted to the effect that
improvement of the status by the vendee after filing of the suit will not affect
the right of pre-emptor except by inheritance or succession. Subsequently, in
the light of the judgment of the Shariat Appellate Bench of the Supreme Court
of Pakistan, Punjab Pre-emption Act, 1913 was repealed and replaced by the Act
of 1991, wherein, instead of Section 21-A, Section 22 was inserted and the
words "other than through inheritance or succession" were deleted. It
will be useful to reproduce both the provisions, which read as under:--
21-A.--Insertion
of new section in Punjab Act, 1 of 1973.--Any improvement, otherwise than
through inheritance or succession, made in the status of a vendee defendant
after the succession, made in the status of a vendee defendant after the
institution of a suit for pre-emption shall not affect the right of the
pre-emptor plaintiff in such suit."
"22. Improvement made in
the status of the vendee defendant after institution of the suit. Any
improvement made in the status of a vendee-defendant after the institution of a
suit for pre-emption shall not affect the right of pre-emptor plaintiff."
12. Prior to insertion of Section 21-A in the
Punjab Pre-emption Act in 1944, it was settled that a pre-emptor must have
superior right of pre-emption at three stages; at the time of sale, at the time
of institution of the suit and at the time of decree of the first Court. It was
due to the reason that the vendee may improve his status or the plaintiff may
lose his superior right of pre-emption due to any other cause before passing
the decree. In the case reported as Ghulam Muhammad vs. Emperor [AIR 1933 Lahore 481], it was
observed as under:--
"There are
however more recent decisions of the Allahabad High Court, e.g., Baldeo Misir
v. Ram Lagan Shukul (3) and Umrao v. Lachhman (4), in which the view has been
expressed that the plaintiff, in order to maintain his suit for pre-emption,
should have his right to pre-empt on three important dates, namely, (1) the
date of the sale; (2) the date of the institution of the suit; and (3) the date
of the first Court's decree. This seems to be the correct view and, with due
respect, I fully endorse it. The law of pre-emption is a highly technical one
and a plaintiff, before he can succeed, must show that his right existed not
only in its preliminary stages before he went into the Court, but also while
the case was in the course of active prosecution before the Judge and in fact
up to the time when the Court passed the decree. I may mention here the case
reported as Muri Mian v. Ambica Singh (5), where the learned Judges have
accepted the principle that a person, who enforces a right of pre-emption in a
suit, must establish his right not only before he instituted his suit, but at
the time when the decree had been given in his favour."
In another case
reported as Pandit Harbhargwan v. Sardar Partap Singh [AIR 1938 Lahore 242], wherein it
was observed as page 242 as under:--
"Besides,
there is overwhelming authorities in support of the proposition that a
pre-emptor in order to succeed in his claim must not only possess a superior
right at the time of the sale but must retain the superiority on the basis of
which he claims to pre-empt also at the stage of the suit and the stage of the
decree."
13. The improvement of status by a vendee after
the filing of the suit was fatal for the plaintiff-pre-emptor. If by improving
his status the vendee
becomes a co-sharer
or his right becomes equal to the plaintiff-pre-emptor, then his suit
was liable to be dismissed but after the insertion of Section 21-A through an
amendment, the position changed and it is consistent view of the Courts that a
vendee can improve his status before the filing of the suit but he cannot
improve the same after the filing of the suit. In the case reported as Ghulam
Muhammad & another vs. Bagga & others [PLD 1962 (W.P.) Lahore 693], while dealing with the scope of
Section 21-A of the Punjab Pre-emption Act, 1913, it
was observed as under:--
"11. The next question
is whether the improvement effected by the plaintiff-respondents in their
status after the date of the sale but before the institution of the present
suit can be of any avail. There doesn't appear to be any specific provision in
the Punjab Pre-emption Act on this subject on the lines of Section 21-A of the
Act which deals with the improvement in the status of the vendee-defendant made
after the institution of a suit for pre-emption. That section appears to
permit, by implication, a vendee defendant to improve his status after the sale
but before the institution of a suit for pre-emption."
14. In the Prior Purchase Act no such provision
like Section 21-A of the Punjab Pre-emption Act, 1913 or Section 22 of the
Punjab Pre-emption Act, 1991, existed. To bring the law in conformity with the
injunctions of Islam, the legislature in Azad Jammu & Kashmir incorporated
Section 20-A in the Right of Prior Purchase Act through an amendment on
15.7.1998. It will be useful to reproduce the same, which reads as under:--
"20-A. Improvement made in the status of the vendee
defendant after institution of the suit.--Any improvement made in the status of
a vendee-defendant after the institution of a suit for pre-emption "shall
not affect the right of the pre-emptor plaintiff in such suit."
A perusal of the
above-reproduced amendment reveals that the amendment bars the improvement of
status by the vendee after the institution of the suit. Any improvement in the
status of the vendee shall not affect the right of pre-emptor-plaintiff in such
suit. It is established law that the pre-emptor has to establish the right of
pre-emption at three stages, i.e. at the time of sale, at the time of filing
the suit and at the time of first decree. The position that the plaintiff must
have a right of pre-emption at three stages is not a creation of statute nor is
it incorporated in any of the provisions of the Right of Prior Purchase Act.
Similarly the improvement of status is not recognized by any of the provisions
of the Right of Prior Purchase Act. It creates no right in vendee-defendant under the
Right of Prior Purchase Act. It was being followed by
implications. In the instant case it is clear from the record that the
plaintiff had a right of pre-emption at the time of sale, at the time of
institution of suit and also at the third stage, i.e, at the time of decree,
because prior to reaching the third stage Section 20-A had been incorporated in
the Prior Purchase Act, which provides that improvement of status by the
vendee-defendant shall not affect the right of plaintiff in such suit. The
decree was passed after coming into force of the amendment. The language
implied in Section 20-A makes it crystal clear that it has been applied on the
pending proceedings. The suit was pending when Section 20-A was inserted
through an amendment. In the case reported as Haji Rana Muhammad Shabbir Ahmed
Khan vs. Government of Punjab Province, Lahore [PLD 1994 SC 1], while dealing
with the scope of Section 22 of the Punjab Pre-emption Act, 1991, the Supreme
Court of Pakistan observed that any improvement in the status of vendee after
institution of the suit doesn't defeat the right of pre-emptor, no matter
whether the improvement was made by an intentional act of the vendee or has
taken place according to some natural event, like succession. It was observed
in Paras 42 and 43 of the judgment as under:--
42. It appears that while framing Section 22 of
the Act, 1991, the Legislature kept in view the provisions of the said Section
21 (A) and has intentionally omitted the phrase "otherwise than through
inherence". The learned Federal Shariat Court has found the omission of
this phrase as against the injunctions of Islam on the ground that the
improvement taking place on account of a natural factor such as inheritance,
should have not been disregarded but we feel that if the legislature had deemed
it fit to omit this phrase and to protect the pre-emptor against all kinds of
improvements, it doesn't violate any injunction of Islam as laid down in the
Holy Quran and Sunnah, rather it seems more pertinent to treat all kinds of
subsequent improvements equally. The question is not whether the vendee has
improved his status by his conscious act or otherwise. The question is one of
principle. The right of pre-emption arises on the basis of those states of
affairs which existed at the time of sale. If the vendee had no right of
pre-emption at that time while the plaintiff had it, the right of the plaintiff
is established, which cannot be defeated by any subsequent, event which takes
place after the institution of the suit. The same principle has been enumerated
by the scholars of Islamic Jurisprudence also.
It is mentioned
in AL-Fatawa Al-Almgiryyah, well-known compilation of fiqh:
urdu
"The
principle is that pre-emption could only be claimed on the basis of ownership
existing at the time of sale and not on the basis of a subsequent ownership."
43. A careful study of
the relevant details in the books of Islamic Jurisprudence makes it clear that
the Muslim Jurists are of the opinion that any improvement in the status from
the vendee after the institution of the suit doesn't defeat the right of
pre-emptor, no matter whether the improvement was made by an intentional act of
the vendee or has taken place according to some natural event, like
succession."
In the case
reported as Muhammad Rashid vs. Muhammad Khaliq & 3 others [PLJ 2002 SC
(AJ&K) 88] this Court while dealing with the operation of Section 20-A
concluded that by improving the status prior to the institution of suit, the
vendee-defendant becomes co-sharer in the suit land but after filing of the
suit the improvement of status shall not affect the right of the plaintiff in
the such suit.
In the case
reported as Aqal Hussain vs. Muhammad Aslam Khan [PLD 2004 AJ&K 17], it was
observed as under:--
"7. No doubt there is
consensus of Judicial Authorities that a pre-emptor is required to retain his
preferential right at three stages i.e. at the time of execution of sale-deed,
institution of suit and decree by the trial Court yet it was so when there was
no enactment disallowing improvement in the status of vendee during pendency of
a suit. Section 20-A of Right of Prior Purchase Act is a new legislation
allowing a right of prior purchase to continue after institution of suit. Here
in this case, no doubt the amendment in the shape of Section 20-A has taken
place after improvement in the status of vendee yet the fact remains that the
suit was pending when the new legislation came into existence. The language
used in the amended Act clearly suggested to say that
the improvement in the status of vendee after the institution of the suit is
not permissible. As stated earlier, the improvement in the status is not a
right recognized by any enactment therefore, it cannot be protected as of a
right. The case law 1995 MLD 1299 is not helpful to the appellant because in
the precedent case the controversy was about protection or defeat of a right
available to a pre-emptor in view of an old enactment. Improvement in the
status is simply an intentional act of vendee or natural event not recognized
as a right by Islamic Jurisprudence after the institution of the suit."
In a recent
judgment of this Court recorded in the case titled Muhammad Saleem Khan v/s Mst
Muqarab Jan & another (Civil Appeal No. 45 of 2008, decided on 3.5.2011)
this Court observed as under:--
"6. The legal position
that a plaintiff must have a right of pre-emption at three stages, i.e., (i) at
the time of sale, (ii) at the time of institution of suit and (iii) at the time
of decree, is not creation of statute nor it is incorporated in any of the
provisions of Right of Prior Purchase Act. To bring in conformity with the
injunctions of Islam, the Supreme Court of Pakistan in a case reported as Haji
Rana Muhammad Shabbir Ahmed Khan vs. Government of Punjab Province, Lahore [PLD
1994 SC 1] declared that after the institution of the suit, the improvement in
the status to defeat the right of pre-emption is un-Islamic. In the light of
said judgment, Section 20-A was incorporated in the Act. It is a celebrated
principle of interpretation of statutes that if a right is accrued to a party
prior to the repeal of law, the repeal would not affect the right accrued. No
provision of right of prior purchase Act provides for improvement of status by
the vendee. The incorporation of Section 20-A has not taken away any statutory
right of any party. It is a new provision incorporated to bring the law in
conformity with the injunctions of Islam. No question of repeal of law is
involved in it."
15. After the insertion
of Section 20-A in Right of Prior Purchase Act. the
vendee-defendant cannot improve the status after filing of the suit and
improvement of status shall not affect the right of pre-emptor-plaintiff in the
suit.
16. The trial Court decreed Suit No. 81/1992
while suit No. 38/1996 was dismissed. The District Judge accepted the appeal of
Rehmat Khan and dismissed that of Sardar Begum. The High Court dismissed both
the appeals. We have gone through the judgments and the whole record. The
District Judge and the High Court accepted the appeals of Rehmat Khan on the
ground that the vendee-defendant has improved the status and after improvement
of status, the rights of plaintiff-pre-emptor and the vendee-defendant have
become equal. The defendant has become co-sharer in the land,
therefore, the plaintiff has no right of pre-emption. We have already declared
that after insertion of Section 20-A in the Right of Prior Purchase Act, the
status improved by the defendant will not affect the right of prior purchase of
the defendant, therefore, the appeal is accepted. The
judgments and decrees of the High Court and the District Judge are set aside
and the judgment and decree passed by the trial Court on 27.4.2000 is restored.
The plaintiff-appellant is directed to deposit Rs. 60,000/- along with the
expenses of sale-deed Rs.3,478/-, in the trial Court
within a period of thirty days from the date of announcement of the judgment,
otherwise the suit shall be deemed to have been dismissed.
17. Suit No. 38/1996 was dismissed by the trial
Court. The District Judge and the High Court dismissed the appeals. There is no
substance in the appeal. The appeal to the extent of Suit No. 38/1996 is
dismissed.
The appeal is
disposed off in the manners indicated above, with no order as to the costs.
(R.A.) Appeal disposed
off
