' This judgment will dispose of the following appeals as common questions of law and facts are involved :
(1) R. S. A. 107/81.
(2) R. ,S. A. 108/81.
2. The brief facts of the case are that the respondent brought a suit for pre-empting the sale of the land in question which took place in one case on 28-3-1972 and in the other on 25-4-1972, within the period of limitation although on the last day of it on the grounds of being collateral of the vendors. The appellant resisted the suit and disputed the superior right of pre-emption of the respondent on the ground that the appellant as tenant in the land had a superior right of pre- emption under M. L. R.
115. This contention was accepted by the trial Court and the suit was dismissed. In appeal the learned District Judge, Multan decreed the suit when he reversed the finding on issue No, 4 holding that the tenant had no preferential right of pre-emption in March, 1972 when the sale took place as the M. L. R. 115 gave benefit to the tenants only in Kharif 1972. The present appeal is directed against this finding of the appellate Court and also raises the question of contumacy which according to him, the plaintiffs had been guilty of, although the two Courts below have found this issue against the plaintiff.
3. The M. L. R. 115 came into force with effect from Kharif 1972 and the first right of pre-emption was given to the tenants only on that date. On 28-3-1972 and 25-4-1972, therefore, the tenant had no right of pre-emption by which he could challenge the superior right of pre-emption of the respondent who was admittedly a collateral of the vendors. But this does not mean that, if such a right accrued to the tenant during the pendency of the proceedings the tenant can be debarred from raising this plea in order to defeat the pre-emptor's claim. The pre-emptor in order to successfully set up a claim for pre-emption has to show that he had a preferential right all-along the proceedings, on the date of sale, on the date of the suit and on the date of the decree. In the present case, the plaintiff-respondent had a preferential right of pre-emption on the date of sale but he was not able to retain this right at the time of 'filing of the suit as in the meantime a superior contender had come in the field through M. L. R.
115. At the time of suit and also at the time of the decree the present appellant was admittedly the tenant in the land who had a superior claim of pre-emption over the plaintiff and was, therefore,' fully armed, to resist the claim of the plaintiff of being superior, in right o pre-emption.
4. The learned counsel for the respondent has vehemently argued, that while he cannot deny the proposition that a defendant can improve his claim during the proceedings of a suit, yet an improvement can be made only if a right was in existence. I am, however, not in a position to accept this contention. The improvement of an existing right or the creation of a fresh right cannot be differentiated and can be equally employed to defeat the claim of a pre-emptor if the pre- emptor is not able to sustain his superior right throughout the three important stages of litigation. I am, therefore, quite clear in my mind that the suit for pre-emption could not be decreed as the superior right of pre-emption claimed by the plaintiff could not be maintained during the proceedings of the suit on account of the coming into force of M. L. R.
115.
5. The learned counsel for the appellant has also pointed out that the conduct of the plaintiff has been contumacious and negligent and his suit could be dismissed on that short ground alone.
Against this the learned counsel for the respondent has argued that since there was a concurrent finding of the Courts below in favour of the respondent, this question cannot be reopened in second appeal. In reply to this the learned counsel for the appellant has referred to the provisions of Order XLI, rule 33, C. P. C. Under which the appellate Court is competent to go beyond the pleadings of the parties even when no cross-objections have been filed. In my view there is lot of force in the arguments of the learned counsel for the appellant on this ground as well and the contumacy and negligence of the plaintiff can be looked into even at the stage E of second appeal as a finding against the plaintiff in such a case will make the suit incompetent and result in rejection of the plaint. The negligence and contumacy of the plaintiff is evident from the record. The suit was instituted on the last date of limitation with a ridiculously low court-fee of Rs, 15 without any regard to the actual valuation of the suit property. It took full two years for the plaintiff to arrange the schedule of net profits and be made up the court-fee only in 1975 and during all this period he never cared to apply to the Court for extension of time for making up the court-fee. Such a conduct is contumacious and negligent and I am in agreement with the learned counsel for the, appellant that the plaintiff's suit could be dismissed on this ground alone.
' In view of the above considerations, the appeal is allowed with costs and the plaintiff's suit dismissed.