This Civil Revision arises from the order dated the 30th of January, 1988, of the learned Addl. District Judge, Faisalaba4 whereby the petitioner-plaintiffs appeal against rejection of her application for temporary injunction by the trial Court was dismissed.
2. The petitioner Dr. Atia Sultana in her suit for pre-emption brought against the respondents- vendees prayed for temporary injunction in her application dated the 9th of June, 1987, stating that in order to defeat her claim, the respondents were trying to alienate the property in question, cause damage to it, change its character, and interfere with its source of irrigation. She sought to restrain them from doing any of these acts till final disposal of the suit.
3. The petition was opposed. The Courts below refused the injunction primarily on the ground that any alienation of the property or improvements effected during the course of pendency would be hit by the doctrine of lis pendens and that the respondents-vendees would be doing it at their own risk. Aggrieved by it, the petitioner preferred the present revision petition.
4. Malik Muhammad Qayyum, Advocate supporting the revision petition contended that lis pendens was no ground to refuse temporary injunction as per rule laid down in Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others (PLD 1975 Lah. 492). He emphasized that even the plain words of Order XXXIX, rule 1, C.P.C., would justify issuance of injunction where the property is being alienated by the defendant. He added that pre-emption was a solemn right of substituting the pre-emptor for the vendees and, therefore, the latter were not supposed to do anything which might adversely affect the former's right or cause inconvenience to her or widely change the nature of the property. He sought support for this view from Malik Hussain and others v. Lala Ram Chand and others (PLD 1970 SC 299) and Arshad A.I and another v. Abdul Rashid and 2 others (PLD 1980 Lah. 382). He tried to distinguish the rule enunciated in Muhammad Shafi and others v. Kaneez Zohra Bibi (1983 CLC (Lah. 2541) and Muhammad Akram v. Rahmat Khan and another (PLD 1987 Lah. 68) on the ground that while the former was not considered in the above Arshad A.I and another's case, the latter did not lay down a decisive rule as the controversy was left open more on the consideration of laches than anything else.
5. On the other hand, Syed A.I Zafar, Advocate for the respondents supported the impugned order on the ground that it was neither arbitrary nor fanciful. He observed that the land in question being surrounded by houses, having the petitioner's own house next door, was for all purposes urban immovable property and that in having already raised thereupon a building half-way before issuance of the injunction, it was causing, comparatively more inconvenience to the respondents than the petitioner. He submitted that the respondents were effecting improvements at their own risk and cost and, therefore, the rule laid down in the Muhammad Akram's case was fully applicable to this case requiring the discharge of the temporary injunction. He claimed that there was ample authority e.g., Muhammad Shafi and others v. Kaneez Zohra Bibi (1983 CLC (Lah.) 2541), Mst. Fateh Bibi v. Ahmed Khan and 6 others (PLD 1971 Lah. 171); Muhammad Bakhsh and others v.
Qutabuddin and others (1981 CLC Lah. 1756 and lately Muhammad Ramzan and another v. Haji Karim Bakhsh and 5 others (1988 CLC (Lah.) 448) wherein it had been invariably held that in pre- emption cases, vendee remains to be the owner to enjoy till he was actually ousted in execution of a pre-emption decree and stressed that acting upon this principle, the respondents were well within their right to utilize the property in any manner they like till they were actually dispossessed and that nothing substantial may be presumed in favour of the pre-emptor whose right being weak and fragile m nature could be defeated any time even after passing of the. Decree, say, by her failure to deposit the pre-emption amount. His plea was that to help a person having such an inchoate right or a remote chance of success as against a de facto owner availing the corpus of the property for valuable consideration, was indeed iniquitous. Drawing attention to the factual side of the present case, he maintained that the injunction was not prayed for promptly and that in the meanwhile the respondents had already spent considerable amount in raising the building at least half-way and stocking a lot of material at the site for its completion. This circumstance alone, according to him, tilted the balance of convenience in favour of the respondents. He reiterated at the Bar that they were conscious of their duty of effecting those improvements at their own risk and cost and, therefore, in all events the petitioner was not entitled to any injunction.
6. Considering the pros and cons I quite feel that the ratio of various cases cited above helps the vendees who are considered to be the owners in praesenti having almost a vested right of using the property in any manner they like. No doubt, the right of pre-emption may be solemn, particularly when it is supported by Shariat also, yet a pre-emtor has to go a long way to get it materialized. It is wrought with many slips and risks till it is fully consummated. There is no reason to stall things in order to lend help to a person holding such a risky right. Although ordinarily the character of the property may not be widely changed, yet it should not grieve a pre-emptor when the vendee undertakes to do anything at his own risk and cost. The property in dispute here was said to be surrounded by Abadi including the location of the petitioner's own house next door. The grievance that the vendees were building upon it so as to change its character widely may not be a much inspiring narration of facts. The doctrine of lis pendens is by all means enough to take care of any alienation made during the pendency vis-a-vis the vendee's exercise of dominion over it in making those alienations. Obviously any disposition is subject to decision by the Court, all the more when the vendee accepts risk and cost thereabout. The pre-emptor's rights whatever are adequately secured and, therefore, keeping in view the bulk of the judicial authority on the point, there was no reason to restrain the respondents in the peculiar circumstances of the case from dealing with the property. I agree to the view of the lower appellate Court and dismiss the revision petition.
M.Y.H./A-727/L