' ZIA-UR-RAHMAN KHAN, J.---Petitioner being plaintiff in a suit for possession through pre-emption has directed the instant petition against the concurrent orders recorded by the courts below vide which his plea for the issuance of temporary injunction against the respondent restraining him from alienation of the suit property has been refused.
2. Precisely stated facts of the case are that the petitioner in the capacity of plaintiff has instituted a suit for possession through preemption against the respondent before the court of Civil Judge, Takht Nasrati District Karak qua the suit-land having been purchased by the respondent on the basis of sale Mutation No,7264 dated 20-3-2010. It is averred in the plaint that he is possessed of all the superior right of preemption against the respondent and when on 13-4-2010, he acquired knowledge about the said sale through his son Naushad Ali Khan at his hujra, he there and then declared his intention to pre-empt the said sale and in this way the first formality of Talb-e- Muwathibat was observed. Notice Talb-e-Ishhad was scribed and attested on 14-4-2010 and was dispatched in the name of the respondent. The record shows that the said was not replied. Along with the plaint, the petitioner also submitted an application for the grant of temporary injunction against the respondent to the effect that he be restrained from the attestation of mutation entered in the names of Nafees Anwar etc., in connection with the sale of the suit property. It may not be out of context to mention that the petitioner got knowledge about the entry of the subsequent mutation from the extract of jamabandi which he obtained Halqa for annexing it with the plaint. At the initial stage status quo was ordered to be maintained. On being summoned, the respondent through his written statement controverted all the assertions of the petitioner adding that he has already sold the suit property to Nafees Anwar etc., and Mutation No,7280 has also been entered to this effect followed by the statement of the concerned Revenue Officer. He also submitted a reply to the application of injunction. The trial court on 27-5-2010 heard arguments on the application and rejected the same on the ground that the petitioner has yet to prove his right of pre-emption and also in case of further transaction no irreparable loss would be caused to him. This interlocutory order was assailed by the petitioner by filing an appeal before the appellate court which too did not bear any fruit and was dismissed vide order dated 7-7-2010, thus the instant revision petition.
3. Learned counsel appearing on behalf of the petitioner vehemently argued that both the courts below while taking wrong view of the matter have erroneously refused the grant of injunction as according to him, the subsequent sale has not yet been materialized and mere entry of sale mutation would not amount to a complete sale within the parameters of section 54 of the Transfer of Property Act; that the observations of the learned appellate court, that the subsequent sale with regard to the suit land was already accomplished before issuance of notice Talb-e-Ishhad to the vendee respondent, is of a permanent nature and in this way the said court has over stepped its jurisdiction so vested in it; that all the three requisite ingredients for the grant of temporary injunction are available in favour of the petitioner and thus respondent is liable to be restrained from 'the attestation of the subsequent sale mutation. He placed reliance upon the cases of Muhammad Hussain v. Muhammad through legal heirs (PLD 2010 SC 803), Abdul Qayum through legal heirs v. Mushk-e-Alam and another (2001 SCM R 798), Muhammad Sharif and others v. Mst.
Fateh Bano and others (2004 SCM R 813) and Mst. Nazir Begum and 2 others v. Muhammad Tahir and others (2005 CLC 925).
4. On the contrary, learned counsel for the respondent while repelling the arguments of the learned counsel for the petitioner, opposed the grant of injunction and supported the impugned findings on the ground that respondent is no more owner of the suit property because he has , already sold the same by entering a mutation in favour of the subsequent purchasers by receiving the entire sale consideration from them and as the petitioner is left with no live cause of action, thus no temporary injunction can be granted in his favour. He further canvassed that in view of the subsequent complete sale it would be a futile exercise to hold further proceedings in the main case forcing the parties to bear the rigours of a protracted litigation. In support of his stand point, he cited many judgments reported as Din Muhammad v. Abrar Hussain and another (PLD 2009 SC 93), Abdul Yamin Khan v. Ashrat Ali Khan and others (2004 SCM R 1270), Muhammad Ramzan and another v.
Haji Karim Bakhsh and 5 others (1988 CLC 448) and Mst. Atia Sultana v. Muhammad Siddique and 3 others (1988 M LD 1109).
5. Arguments heard and record perused.
6. As is evident from the record and the facts discussed above, the petitioner being pre-emptor seeks grant of injunction against the respondent to the effect that he should desist from the attestation of the subsequent sale mutation having been entered by him in favour of the subsequent vendees. The moot question likely to be resolved by this Court is that whether in the given circumstances of the case such-like restraint order can be passed to withhold the attestation of the subsequent mutation and whether such like order would advance the cause of the petitioner towards the enforcement of his right of pre-emption. This question has to be thrashed out in view of the peculiar facts of the instant case. The record shows that the petitioner got knowledge about the entry of the subsequent mutation prior to the institution of the suit, when he obtained a 'Fard Jamabandi' from the Patwari Halqa for annexing the same with his plaint, but he did not take any step in this regard by adding a plea of perpetual injunction in his suit nor he expressed his intention to pre-empt the subsequent sale nor sought the impleadment of subsequent vendees. The simple act he did was that he along with the plaint submitted an application for the grant of injunction, which was opposed by the respondent in the light of the defence set up by him regarding the re-sale of the disputed property.
7. Needless to observe that temporary injunction is granted by the courts at the initial stage in order to maintain status quo or to preserve the property in dispute from being wasted and to avoid the casting of any expressions upon the rights of the parties and also to avoid multiplicity of B proceedings. Likewise in case of any violation the violators are not only punished for their acts, rather the same transaction is also made hit by the principle of lis pendens. No doubt injunction can also be granted to prevent a property from being alienated, in certain circumstances. These principles are to be dilated upon in the guidelines and observations given in the case law cited at the Bar. In the case in hand, which is a preemption suit in which right or title is acquired through substitution on the basis of a decree with respect to the property in dispute. This is also to be resolved that what is the legal effect of the re-sale upon the right of pre-emption of the petitioner.
In this respect the judgments of various High Courts referred to by the learned counsel for the parties regarding the grant or non-grant of injunction in a suit for pre-emption are not discussed for the time being and the issue in hand is to be discussed independently in the light of the latest dicta of the august apex Court, in order to arrive at a safe conclusion whether in the suit inland the grant of injunction is essential for the protection of the petitioner's right of pre-emption. The judgment cited by the learned counsel for the respondent reported as PLD 2009 SC 93 wherein it has been held that if the re-sale occurs prior to the institution of the suit, the plaint is liable to be rejected, is not applicable at this stage, because the respondent has so far not made such like application. Likewise as far as the other judgment reported as 2004 SCM R 1270, in which the august apex Court has observed that the principle of lis pendens cannot be pressed into service, when the re-sale takes place prior to the institution of the suit and in that eventuality the first sale is not pre- emptable and the suit for pre-emption can be instituted only against the subsequent sale, is concerned, the same is also not applicable because this judgment in the recent judgment of the apex Court has not been approved on the ground that it was a leave refusing order. Although in the aforesaid judgment the only issue was regarding the impleadment of the subsequent vendee, which was disallowed up to the apex Court being beyond the period of limitation. The most valuable judgment which on all fours promotes the cause of the instant case is reported as PLD 2010 SC 803. This judgment is being relied upon by the learned counsel for the petitioner, wherein the august Court while accepting the review petition has held as under:-- "S.52---Review of Supreme Court judgment-Right of pre-emption---Subsequent vendee--- Limitation---Lis pendens, principle of---Applicability--During pendency of suit filed by pre-emptor vendee sold land in question and pre-emptor impleaded subsequent, vendee as defendant--- High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court on the ground that subsequent vendee could only be impleaded within the period of limitation provided under S.31 of North-West Frontier Province Pre-emption Act, 1987--- Validity---Principle of lis pendens was not applicable to cases, where a suit for pre-emption had already commenced within the period of prescribed time---Right of subsequent vendee was also governed on the basis of suit, which had already commenced in respect of same property because right of pre-emption had been claimed in respect of the property and not in respect of the person who become first or second vendee---Judgment under review was required to be revisited and judgment passed by High Court was set aside and matter was remanded to High Court for decision afresh---Petition was allowed."
8. What can possibly be derived conveniently from the recent verdict given by a Full Court is that the principle of lis pendens is not applicable at all in the case of preemption where the suit was within the period of prescribed time. Similarly the right of the subsequent vendee has also been held to be governed on the basis of suit, which has already commenced in respect of the same property on the analogy that right of pre-emption is claimed in respect of the property and not in respect of the first and second vendee. What can further be derived from this dictum of the apex Court is that only the subsequent vendee is impleaded as a party and for that purpose the period of limitation shall not run afresh, rather it has to be computed from the date on which the first suit was instituted. Moreover, in all the cases mentioned above there was no prayer for the grant of injunction.
9. Even otherwise the re-sale has been brought to the notice of the petitioner by the respondent through his written statement stating therein that prior to the institution of the suit he had already alienated the suit property by entering a sale mutation in favour of the subsequent vendees by realizing the sale consideration from them and now there has remained only the formality of attestation of mutation. In these circumstances, when a valid sale can even be effected orally, then mere attestation of mutation is a formality and withholding it would not serve any useful purpose, particularly when the injunction so sought is likely to affect the rights of the subsequent vendees, who are not yet party to the suit. In other words being not party to the suit the interim order regarding non-attestation of mutation is not legally binding upon them. This fact is yet to be ascertained by the trial Court after they are impleaded as party to the instant suit or some evidence in this regard is brought on the record. Moreover the grant of injunction in such like situation in a pre-emption suit is quite distinguishable from injunction in an ordinary court of civil nature. It is also to be mentioned that with the help of injunction no new situation can be created particularly when the petitioner is not going to sustain some irreparable loss.
10. What can irresistibly be inferred from the above discussion is that the petitioner's right of pre- emption although solemn right, particularly when supported by "Shariat" also, yet the same is wrought with many slips and risks till it is fully consummated in accordance with the accepted provisions and rules of the relevant law. His pursuit in this regard is subject to strict proof as a factual and legal controversy. What superior right of pre-emption he is possessed of and how he has observed the requisite formalities of 'Talbat' and how and in what manner the subsequent sale has been effected and what bearing the non-issuance of temporary injunction has upon his said rights are the questions to be resolved at the trial.
11. What the parties are required to do in the light of the aforesaid discussion and the guidelines and observations given by the apex Court in the judgments referred to above is left to the parties and jurisdiction of the trial Court. However, if the new vendees are going to either change the very structure of the suit property or try to defraud the petitioner in any way, the petitioner may seek his remedy in accordance with law.
12. However, if the observations of the Courts below are causing some legal injury to the interest. Of the petitioner, the same be treated of tentative nature and shall be having no bearing upon his cause.
' In the light of what has been discussed above, as the petitioner has not been able to make out an arguable case for the indulgence of this Court, as a court of supervisory jurisdiction within the meaning of its limited jurisdiction under section 115 C.P.C., thus, the instant petition being devoid of substance and merits and in the absence of any irregularity and illegality or some other legal infirmity is hereby dismissed, leaving the parties to bear their own costs. However, the trial Court is directed to complete the trial of the main case at the earliest possible. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.