Respondents Nos. 1 and 2 filed a suit saying that the sale effected by the attorney of their uncles and aunts on 29-5-1978 in favour of his own wife, the petitioner, was collusive, void and illegal and as an alternate relief, the plaintiffs suit for pre-emption being the nephews of the vendors and Khatedars in the estate, be decreed in the sum of Rs.10,000. The suit was filed on 28-5-1979. Five years later on 24-4-1984, the petitioner filed an application under Order VII, rule 11, C . P. C . Saying that "the plaint was liable to be rejected on the ground that the two inconsistent pleas of the invalidity of the sale and that of pre-empting, are prima facie mutually destructive." Respondents Nos.l and 2 put in an application under Order VI, rule 7, C . P. C . For amendment of their plaint on 15- 9-1984 praying for deletion of the claim for a declaration and proceeding with the suit of pre- emption. When the matter came up before the leaned trial Court, the counsel for the plaintiff- respondents made a statement that the plaintiffs would like to withdraw the suit with reference to the declaration and permission may be granted, further that they only seek relief in exercise of their preferential right to pre-empt the sale. The counsel for the defendant-petitioner submitted the aforesaid statement confirmed the validity of the objection raised in the application under Order VII, rule 11, C . P . C . And that the suit for pre-emption too was liable to be dismissed. The learned trial Court decided that since the plaintiffs wanted to give up their claim with regard to the declaration and wanted as an alternate relief to proceed with their suit for pre-emption, they were entitled to do so, especially-for the reason that the plaintiffs had deposited Zar-e-Punjum and issues had also been framed in that behalf. The petitioner's application under Order' VII, rule 11, C.P.C. Was dismissed vide order dated 12-1-1985. Against this order, the petitioner filed a revision petition and it was urged before the learned District Judge that "since through the amendment, the complexion of the suit has changed, that the impugned order is illegal and suffers from material irregularity." It was observed by the learned District Judge that "I am not inclined to agree with this contention. Under the law, the plaintiff has a right to seek more than one relief, in addition or in the alternative and nobody can stop him or her from giving up relief initially sought during the pendency of the matter. In presence of this established principle, it was the right of the respondents to give up their relief regarding the validity or otherwise of the impugned transaction.
Consequently, no exception can be taken to the impugned order; hence I reject the revision petition in limine." This is vide order dated 25-4-1985. This is challenged by the petitioner through the aforetitled Constitutional petition.
2. Learned counsel for the petitioner has vehemently contended that a party is not entitled to assert two inconsistent facts. In the case in hand the defendant had asserted that there was no sale. That being so, they would have no right to urge that if there were a sale, they were entitled to pre-empt the sale: He referred to the following decisions:-
(1) Ala-ud-Din v. Mst. Farkhanda Akhtar PLD 1953 Lah. 131, (2)Amin Yousuf Nizami Rashid Rayon Mills, Karachi PLD 1971 Kar. 505,
(3) Budho and others v. Ghulam Shah PLD 1963 SC 553,
(4) Manghta Khan and others v. Mst. Hamida Begum and others PLD 1981 SC 51, and
(5) Hap Sultan Muhammad and another v. Muhammad Siddiq P L D1973 SC 347.
Learned counsel took time to elaborate his submissions.
3. A perusal of the judgments in the cases cited by the learned counsel for the petitioner would show that in the first case, in her statement, the plaintiff had denied the factum of marriage and in the alternate she had pleaded that whether the defendant was married to her or not, she herself being minor, was entitled to repudiate it. The learned Judge held that the pleas were not inconsistent. Learned counsel read out the paragraph beginning from the bottom of page 133 and laid emphasis on the sentences that "the Code of Civil Procedure does not allow a party to make contradictory allegations of fact. This is because a party cannot, in his pleading, make a statement which is not consistent with truthfulness". The observation is quite right. A party cannot assert a fact to be in existence and then say that it did not exist. This is clearly different from saying that when a party says that according to the case of the defendant or the respondent, the fact asserted is this but that it is invalid and even if it is valid, he has a right to defeat it. That is exactly what was being done in the case in hand when the plaintiffs were saying that the sale was collusive and illegal and if that be not accepted, then, the plaintiff-respondents had a right to question the sale in exercise of their right of pre-emption. In the second case referred to by the learned counsel for the petitioner, the facts were that the defendant in its pleadings first said that the accident did not take place at all in its factory as alleged by the plaintiff and then subsequently it said that it did take place there but the plaintiff himself was negligent. Of course, a party cannot be allowed to take oath to assert two inconsistent facts. In the present case, of course, as seen above, this is not the situation. In the third case quoted by the learned counsel, it will be' interesting to note that the plaintiffs filed a suit to claim land on the basis of being the heirs of the deceased preposterous. In the course of pleadings, wills were also found to be genuine having been executed by the deceased in favour of the plaintiffs but the relief on the basis thereof was not given to the plaintiffs by the Courts below on the ground that that was not claimed in the plaint. The learned Supreme Court held that notwith--standing the non-claiming of the relief specifically if the plaintiffs were entitled to the one on the proved facts, that relief should also be granted by Courts. In the fourth case an observation was made at page 55 that "The civil Court while deciding a pre-emption suit is not required to test the validity of the sale on the touchstone of para. 25 of M.L.R. 64 so long as it was not disputed that there was a 'sale' which the plaintiffs sought to pre-empt. If there was no 'sale' then the suit for pre-emption itself might not be competent". From the observation it is quite clear that if in fact there were no sales, there will be no question of pre-emption but in the case in hand there was a sale about which a document in the form of sale-deed had been executed, about which, of course, the plaintiffs had said that the deed was collusive and be so declared which plea subsequently the plaintiffs had withdrawn in view of the objection raised by the petitioner that two pleas could not have been raised. From the last case referred to by the learned counsel for the petitioner, he read out from page 354 to the following effect:- "The question raised falls into two parts, first, whether on the dates when the respective sales were made, the vendors possessed salable or transferable interests in the land sold by them, answering to the description as contained in sections 4 and 6 of the Punjab Pre-emption Act I of 1913, so as to give rise to a cause of action for pre-empting those sales by the persons, who, under the pre- emption Law, were entitled to do so."
This submission, on the other hand, would go against the petitioner in so far as that a pre-emptor could challenge the validity of the sale and if were not to succeed on the point he could claim his right of pre-emption. Learned counsel for the petitioner also contended that the amendment application filed by the respondents Nos. 1 and 2 asking for deletion of certain paragraphs from the plaint, especially, paragraph 5 wherein it was stated that the cause of action arose because of the respondents refusing to get the sale-deed cancelled and asking for its substitution for a decree for pre-emption, changed the nature of the suit and that is not permissible. The contention is without force for the simple reason that in the suit instituted in the first instance the respondents asked for a declaration as well as a decree for pre--emption on payment of the consideration amount and the case proceeded accordingly. Under the orders of the Court, the plaintiff-respondents deposited Zar-e-Punjum and for full five years both the parties continued with the litigation on this score.
Therefore, there was nothing new in the amendment application which was being asked for.
4. From the above it would be quite clear that though the learned counsel for the petitioner has worked hard to make out a case and his contentions have, therefore, been attended to, yet there is no escape from the conclusion that the submissions have no force with reference to the controversy in hand. A relief claimed in the beginning has been dropped. The other one claimed then is being pursued. Permission has been granted by the learned trial Court and the objection thereto has been examined by the revisional Court. Civil proceedings conducted by competent Court within their jurisdiction, call for no interference by invocation of Constitutional jurisdiction. If interim orders passed by a civil Court and upheld by the revisional Court are to be brought under scrutiny in exercise of the Constitutional jurisdiction for no good reason, the civil suits would take much too long a period than what they do now for final decision.
5. In view of what has been stated above, there is no force in this petition and the same is accordingly, dismissed in limine.