Submission of Suits for Pre-Emption before Tehsildar in absence of Civil Court

Submission of Suits for Pre-Emption before Tehsildar in absence of Civil Court Actus Curiae Neminem Gravabit - Act of Court Shall Prejudice No Man Case Laws Civil Law Civil Revision Decision on Merit Rather Technicalities Knowledge - Civil Law Litigation & Arbitration Pre-Emption Separation of Judiciary from Executive Solutions - Civil Law Supreme Court Mr. Justice Dost Muhammad Khan in his judgment has decided the issue regarding submission of suits for pre-emption before Tehsildar in absence of Civil Court and legal basis thereof in Civil Appeal No. 1207 of 2004.

1. This single judgment shall also decide CA No.1208/04 and CAs No.577-578/06 because all have arisen from almost the same judgment of the Lahore High Court dated 17.04.2001, through which Civil Revision Petitions No.376-D and 377-D of 1987 were allowed and two separate suits for possession through exercise of right of pre-emption were decreed by reversing the judgment and decrees of the learned Additional District Judge, Camp at Narowal.

2. Leave to appeal in all the four cases was granted to consider as to whether the suits, filed by the respondents/preemptors were presented to the competent court on 30.05.1963 and if it was not so then, whether these had become time barred on the date when the same were received by the competent forum/Civil Judge, Narowal, after the said Court reopened for judicial work.

3. The epitome of the relevant facts of the present controversy is that, the appellants in these two sets of appeals purchased land through two different transactions. In the first transaction, the land measuring 53-K, 4-M was purchased on 31.05.1962 through mutation No.675 for sale consideration of Rs.4,000/-. Through the second transaction, the remaining land of the vendor, measuring 41-K, 16-M was purchased on 21.12.1962.

4. The respondents herein, on the basis of superior right of pre-emption, instituted two separate suits on 30.5.1963, but before the then Tehsildar of the area, due to the absence of the Civil Judge. These suits were transmitted by the Tehsildar to the learned Civil Judge, who received the same on 5.6.1963 and were duly registered.

5. The appellants/vendees contested both the suits on various legal and factual grounds however, after holding trial, both the suits were decreed by the Trial Court vide judgment and decrees dated 10.12.1985. On appeals, filed by the appellants, the learned Additional District Judge, Camp at Narowal held that the suit, through which the first transaction of sale was pre-empted, was barred by time as in his view these were not presented or filed in a competent court while about the second suit the learned District Appellate Court held that after dismissal of the first suit, the vendees i.e. the present appellants had become co-owners in the suit property thus, they were possessing equal right of pre-emption and in this way superior right of pre-emption could not be claimed by the respondents/preemptors, thus, the second suit was also dismissed and both the appeals were allowed.

6. The learned Judge in Chamber of the Lahore High Court, Lahore through the above Civil Revision Petitions, reversed the findings of the learned Additional District Judge and restored the judgments and decrees of the Trial Court and decreed both the suits.

7. The entire controversy needed to be resolved is, the one discussed in para-2 of this judgment.

8. Learned counsel for the parties also addressed arguments on this point alone. We have considered their valuable arguments and have carefully perused the record as well.

9. It is an admitted fact that only one Civil Judge was posted at Narowal, which by then was having the status of Tehsil, or to say, sub-division. The filing of the suits before the Tehsildar in the absence of the Civil Judge from the station, was a regular practice therefore, filing of the present suits before him could not be taken as an exception.

10. Learned ASC for the appellants argued with considerable vehemence that notification No.157/C-II-26 dated 10.02.1969, issued by the learned District Judge, Sialkot, who was competent to issue the same, could not be given retrospective effect to cover the presentation or filing of the present suits before the then Tehsildar, Narowal therefore, it was wrongly relied upon by the learned Judge in Chamber of the Lahore High Court.

To clarify the factual position for the purpose of drawing legitimate inference there-from, the said notification is reproduced below:

“I hereby authorize the Tehsildars Narowal and Shakargarh Tehsils who are receiving plaints in the absence of a Civil Judge in that area to sign challan forms for the deposit of rent and other amounts in consequent (consequence) of orders passed by the Civil Judge in that behalf.”

The words employed in the notification strongly suggest to an unrebuttable extent that the Tehsildars Narowal and Shakargarh, both were already authorized in receiving plaints in the absence of Civil Judge in that areas however, through this notification they were conferred upon additional powers to sign challan forms for the deposit of rent and other amounts in consequence of orders passed by the Civil Judge in that behalf.

11. Neither the appellants have brought on record any evidence to the contrary nor the learned Additional District Judge, who reversed the judgments and decrees of the Trial Court, has taken pains to probe into the matter in a legal manner by tracing out the origin of the authorization of Tehsildars by the District Judge of the Sessions Division, under Rule 7(c) of the High Court (Lahore) Rules and Orders, Chapter-I, Part-B, read with section 23 of the Civil Court Ordinance, 1962.

12. It must always be kept in mind that the establishment of judicature has been ordained by Article 175 of the Constitution. In Sub-Article (3) of Article 175 ibid it was mandatory for the State to separate the Judiciary from the Executive progressively within the initial period of five years however, this period was extended to fourteen years by the then Martial Law Administrator, by inserting the amendment through Presidential Order No.14 of 1985 however, after the landmark judgment of this Court in the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) the Judiciary was ultimately separated from the Executive Branch in 1994-95 due to the written undertakings, given by the Federal Government and all the Provincial Governments.

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