' MUNIR A. SHAIKH, J.---This judgment will also dispose of Civil Revision No,394/D of 1986.
2. This appeal filed by vendees is directed against judgment and decree dated 12-6-1986 passed by learned trial Court whereby the three pre-emption suits filed by Ihsan-ul-Haq, Nazar Muhammad and Mst. Rabia Bibi (she died during the pendency of the suit, and is now represented by her heirs, Ihsan-ulHaq, plaintiff being one of them, have been decreed.
3. The facts of the case shortly stated are that land measuring 204 Kanals situated in Chak No,40/12L Tehsil Chichawatni, District Sahiwal was owned by Col. Amin Khan who sold it to the present appellants who are real brothers through registered sale-deed dated 23-4-1974 for a consideration of an amount of Rs,6,20,000. Mutation No,127 dated 16-5-1974 was sanctioned in pursuance of the said sale-deed. Ihsan-ul-Haq, his mother Mst. Rabia Bibi and Nazar Muhammad separately instituted three suits to pre-empt this sale. Ihsan-ulHaq claimed right of pre-emption on the grounds of ownership in the Khata and ownership in the estate whereas the other two pre- emptors based their claim on the ground of ownership in the estate. On the application of the preemptors the learned trial Court allowed them to furnish security instead of depositing Zare- Panjam. All the three suits were consolidated by order dated 14-3-1977 passed by learned trial Court. An application was moved by the appellants for rejection of the plaint due to non- compliance of the order of the Court regarding submission of the security. By order dated 12-5- 1977, the learned trial Court rejected the said application. This order was assailed by the appellants through three Civil Revision Petitions filed in this Court. These revision petitions were accepted and the case remanded to the learned trial Court to decide the application of the appellants for rejection of the plaint afresh. The learned trial Court after recording evidence through order dated 23-9-1981 dismissed the same by holding that the security was furnished within the time fixed by the Court and there was no default in that respect. This order was challenged by the appellants through Civil Revision No,391 of 1983 filed in this Court which was rejected. The matter was taken to the Supreme Court through C.P.S.L.A. No,13 of 1986. The Supreme Court on 17-2-1986 passed an interim order in this petition directing that pending the disposal of the aforesaid CPLA no final order shall be passed by the trial Court. Ultimately, the said petition was dismissed by the Supreme Court through order dated 31-5-1986.
4. The appellants contested the claim of the plaintiffs to pre-empt the sale; Haji Nazar Muhammad plaintiff also contested the claim of the plaintiffs, Ehsan-ul-Haq and Mst. Rabia Bibi, that they had the right of pre-emption. The appellants, in their written statement, pleaded, among others, that the land in suit was situated in Chichawatni Town; that it was governed by the provisions of Colonization of Government Lands Act, 1912 and "the said Act having been applied to the land and the local area within the limits whereof the same is situated, no right of pre-emption either existed at the time the vendor proposed to sell the suit property to the answering defendants or at the time of sale nor does it exist now, and declared by the Provincial Government of the Punjab in exercise of the powers under subsection (2) of section 8 of the Punjab Preemption Act, 1913 through Notification No,196-B dated 28th February, 1944; that "the land, garden and buildings purchased by the answering defendants, the right of pre-emption in respect whereof has been claimed by the plaintiff on the basis of ownership of the land in village Chak No 40/12-L is no longer situated within the limits of Chak No,40/12-L, but since 8-9-1975 has come within the limits of Chickawatni Municipality"; that the right of Mst. Rabia Bibi, plaintiff, if any, was not inheritable and her legal representatives had no right to continue the suit and that "the alleged right of pre-emption claimed in the suit and the law giving such a predatory right is not only violative of fundamental rights, but is also repugnant to Holy Qur'an and Sunnah. The so-called right of pre-emption claimed being opposed to Holy Qur'an and Sunnah i.e, dictates of Islamic Shariat, plaintiff's suit claiming such a right is, therefore, not at all maintainable and merits forthwith dismissal".
5. Similarly, Ehsan-ul-Haq, plaintiff, denied the pre-emptive right of Haji Nazar Muhammad, plaintiff; according to him, his suit was collusive and was for the benefit of the appellants.
6. The learned trial Court on the pleadings of the parties framed the following issues:--
(1) Whether the suits are not maintainable for the reasons given in preliminary objections Nos. 1 to 3 in the written-statement of defendants No,1 to 3?
(2) Whether the pre-emptors have locus standi and cause of action for their respective suits?
(3) Whether the land in dispute has not been properly described in the suits, if so, its effect?
(4) Whether this suit and the suit of Mst. Rabia Bibi, rival pre-emptor have been incorreclty valued for purposes of court-fee and jurisdiction, if so, what is the correct valuation for both the purposes and what is the proper court-fee?
(5) Whether suit No,79 of 1975 entitled Haji Nazar Muhammad v. Muhammad Ibrahim and others is collusive and for the benefit of defendants No,1 to 3?
(6) Whether the plaintiff has a superior right of pre-emption against the vendee-defendants and rival pre-emptors?
(7) Whether Haji Nazar Muhammad and Mst. Rabia Bibi, defendants rival pre-emptors have superor right of pre-emption as against the vendee-defendants and who among them has a superior right against the others?
(8) Whether ostensible price Rs,6,20,000 was fixed in good faith?
(9) If not, what was the market value of the land in dispute at the time of its sale?
(10) Whether defendants No,1 to 3 have made any improvements over the land in dispute, if so at what costs and whether they are entitled to recover these costs?
(11) Relief.
7. Ihsan-ul-Haq plaintiff examined Muhammad Sarwar Patwari Halqa as P.W.1 and tendered in evidence copy of jamabandi for the year 1955-56 as Ext.P.2, copy of Mutation No,19 as Ext. P.3, copy of Mutation No,43 as Ext.P.4 copy of Jamabandi for the year 1961-62 as Ext. P.5, copy of Jamabandi for the year 1971-72 as Ext. P.6 and copy of Jamabandi for the year 1971-72 as Ext.P.7 Ihsan-ul-Haq plaintiff appeared as his own witness in support of his case. Rabia Bibi deceased examined Asghar Ali son of Muhammad Khan who was her special attorney as D.W.1 and produced copy of Jamabandi for the year 1971-72 as Ext.D.1 and closed the affirmative evidence. Nazar Muhammad third pre-emptor examined Mukhtar Ahmad Naib-Sadar Qanungo as D.W.2 and he examined himself as D.W.3. He also produced copy of Khasra Girdawari relating to Kharif 1974 and Rabi 1974 as Ext. D-2/A, copy of Jamabandi for the year 1971-72 as Ext.D-3 and copy of Mutation No,127 of sale as Ext.D-4 and copy of Jamabandi for the year 1971-72 as Ext. D-5. It may be observed here that all the three plaintiffs were not cross-examined by the appellants because their learned counsel was not present on the dates when their evidence was recorded. An application was moved on behalf of the appellants that they be permitted to cross-examine the plaintiffs. This application was disposed of by order dated 22-2-1986 on the basis of undertaking given by the learned counsel for the plaintiffs that when the plaintiffs would again examine themselves as their witnesses in rebuttal after the evidence of the appellants had been recorded, they may be cross-examined qua their evidence already recorded in affirmative. The learned trial Court passed the order accordingly and directed the appellants to conclude their evidence and thereafter they could cross-examine the plaintiffs. On 1-3-1986 to which date the case was adjourned an application was moved by the appellants that before recording their evidence, they should be given opportunity to cross- examine the plaintiffs who had already got their statements recorded in affirmative evidence. The learned trial Court passed an order that the appellants were permitted to cross-examine the plaintiffs in the interest of justice when they would appear in rebuttal, and the application was dismissed. Another order was passed on the same date which appears to have been passed on a joint application moved on behalf of the plaintiffs that they were ready to submit themselves for cross-examination on the date fixed before the recording of the evidence of the appellants, in which it was observed that the Court had no objection. There is another order passed by the learned trial Court on the same date whereby the appellants were burdened with costs of Rs,300 for their failure to produce evidence. The case was adjourned to 8-3-1986 for recording the evidence of the appellants. This order in terms is inconsistent with the earlier two orders passed by the learned trial Court on this date through which the request of the appellants to cross-examine the plaintiffs was conceded by the plaintiffs and the plaintiffs were ordered to appear for cross- examination on the next date of hearing. On 8-3-1986, as is manifest from the order passed by the learned trial Court in one case attorney of the plaintiffs was present whereas in the other case plaintiff himself was present for cross-examination. An application was moved on behalf of the appellants for adjournment of the case as their learned counsel was not available. The case was adjourned to 13-3-1986. On 13-3-1986, when the case was taken up the appellants did not allow their learned counsel, flaji Muhammad Shafi, Advocate, Chichawatni to cross-exmaine the witnesses of the plaintiffs on the ground that their learned counsel Sh. Asghar Hameed, Advocate of Sahiwal was to conduct the cross-examination. The learned trial Court observed that after the transfer of the suit from Sahiwal to Chichwatni when notice was issued to Sh. Asghar Hameed, Advocate, learned counsel for the appellants at Sahiwal to appear before the transferee Court he wrote a note on the summons he was engaged for appearance before the Court at Sahiwal only and was not counsel for the appellants for appearance in the Court at Chichawatni. The learned trial Court adjourned the case to 26-3-1986. On 26-3-1986 the appellants made an application seeking an adjournment as their learned counsel Sh. Asghar Hameed Advocate was not available.
The learned trial Court proceeded to pass order for closing the evidence of the appellants under Order 17, Rule 3, C.P.C. And also their right to cross-examine the plaintiffs who were present in the Court. This order has been challenged by them in Civil Revision No,394 of 1986. The case was adjourned to 17-4-1986 for awaiting the order of the Supreme Court because as observed earlier the Supreme Court had issued a direction to the trial Court not to pass final order in the case. On 16-4-1986, an application was made by Nazar Muhammad, one of the pre-emptors, seeking permission to produce additional evidence. Notice was ordered to be issued of this application to the appellants for 12-5-1986. On 12-5-1986, reply to the said application was filed and the case was adjourned to 14-5-1986 for arguments on the said application. On 14-5-1986, none on behalf of the appellants was present. The case was adjourned to 18-5-1986 for arguments. On that date also none on behalf of the appellants was present. The case was adjourned to 19-6-1986 for arguments at the request of counsel for the plaintiffs.
8. In the meantime, on 7-6-1986, Haji Nazar Muhammad plaintiff, made yet another application under Order 16, rules 1 and 2 read with section 151 of the C.P.C., saying that of the witnesses cited by him, Muhammad Inayat had died and that he be allowed to produce one Haji Muhammad Hussain in his place. Accordingly, he prayed for permission to amend his list of witnesses. On his application, the learned Civil Judge directed "notices to other parties and their counsel for 12-6- 1986". In pursuance of this direction, notices were issued to the appellants' counsel, Haji Muhammad Shall, Advocate, Chichawatni, Col. Muhammad Amin, vendor, and the appellants, Muhammad Ibrahim, Hashmat Ali and Muhamamd Ashraf, for 12-6-1986. Haji Muhammad Shafi, Advocate, wrote on his notice that he had other professional business to attend to at Sahiwal on 12-6-1986 and notices should be served upon the apellants; the report on the notice issued to Col. Muhammad Amin was that he had died and the report on the notice issued to Muhammad Ibrahim, appellant, by the NaibNazir was that the date should be extended. Thus, the notices issued to the appellants were not entrusted for service to any process-server.
9. On 12-6-1986, the learned Civil Judge recorded proceedings on the back of the application of Haji Nazar Muhammad, plaintiff, under Order 16, rules 1 and 2 of the C.P.C. Dated 7-6-1986. After noting that Ihasn-ul-Haq, plaintiff, was present in person, with his counsel, Ch. Muhammad Siddique Kamyana, Advocate; that Mr. Shaukat Hayat, Advocate, was present for the legal representatives of Mst. Rabia Bibi, that Mr. Ikramullah Mann, Advocate, was present on behalf of Haji Nazar Muhammad, plaintiff, and that Muhammad Shari, Advocate, was present on behalf of the appellants, the learned Civil Judge proceeded to record the statement of Haji Muhammad Shall, Advocate, in connection with that appliction. Haji Muhammad Shafi, Advocate, said that he had no objection to the application of Haji Nazar Muhammad, plaintiff, being accepted.
10. On the same day viz. 12-6-1986, an application was made by Ihsan-ulHaq, plaintiff, informing the learned Civil Judge that "the petitions for special leave to appeal filed by the respondents in this case against the order of the Multan Bench of the Lahore High Court were dismissed in limine by the Supreme Court of Pakistan on 31-5-1986. That being so the stay order restraining this Court from pronouncing final judgment in this case has been vacated" and saying that the case was 11 years old; that though the case stood adjourned to 1976-1986, "awaiting the judgment of the Supreme Court of Pakistan", yet as the PSLA had been dismissed, "this Court is, therefore, at full liberty to pass final judgment in this case at any time" and praying that "the proceedings in the case may kindly be taken expeditiously as desired by the High Court and the case may be finally diposed of one merits". On this application, the learned Civil Judge recorded proceedings on the order-sheet, the starting point of the proceedings being the significant observation: {{URDU TEXT}} ' The learned Civil Judge then noted, the presence of the parties and their counsel, observing that they were present in connection with the application of Haji Nazar Muhammad under Order 16, rules 1 and 2 of the C.P.C. And said that as the case was 10 or 11 years old, proceedings on the "applications" should be taken {{URDU TEXT}}. He then proceeded to record the statements of Ch. Muhammad Siddique Kamyana, Advocate, counsel for Ihsan-ul-Haq, plaintiff, Haji Muhammad Shafi, Advocate, Mr. Shaukat Hayat, Advocate, counsel for the legal representatives of Mst. Rabia Bibi plaintiff, and Mr. Ikramullah Maan, Advocate, counsel for Haji Nazar Muhammad, plaintiff. Ch. Muhammad Siddique Kamyana, Advocate, stated that no stay order of any higher Court was in operation; Haji Muhammad Shaft, Advocate, stated that the appellants had informed him that they were approaching the High Court for filing a revision petition but he did not know if the High Court had made any order staying the proceedings. He added that in those circumstances, he could not raise any legal objection to the hearing of the suit; Mr. Shaukat Hayat, Advocate, and Mr. Ikramullah Maan, Advocate, also said that no stay order was in operation. In view of these statements, the learned Civil Judge thought that he could proceed with the disposal of the suit; in that behalf, he observed that the suit was 11 years old and that there was a direction from the High Court for its early disposal. He, therefore, invited the parties to address arguments on the pending applications one by one. He took up the applications of Haji Nazar Muhammad, plaintiff first. During the arguments, however, the learned Civil Judge observed and reduced this fact to writing that learned counsel for the plaintiffs-pre-emptors had reached a compromise and counsel for Haji Nazar Muhammad, plaintiff wanted to make statement. He, therefore, recorded the statement of Mr. Ikramullah Maan, Advocate; he withdrew the applications dated 17-4-1986 and 7-6-1986 and those applications were, therefore, dismissed as withdrawn. This was followed by another order by the learned Civil Judge that counsel for the parties wanted to make statements and proceeded to record them. Ihsan-ul-Haq, plaintiff, said that as Shariek Khata and Shariek Khewat, he had a preferential right of pre-emption as against the appellants and the rival pre-emptors but to resolve the 11 years old dispute, they had agreed that the suit should be decreed in favour of the plaintiffs in the following shares; to the extent of 100 Kanals in favour of Ihsan-ul-Haq, plaintiff, to the extent of 68 Kanals in favour of Haji Nazar Muhammad, plaintiff, and to the extent of 36 Kanals in favour of the legal representatives of Mst. Rabia Bibi. He further stated that the sale price of Rs,6,20,000 was acceptable, that he would also make up the deficiency in court-fee and that the parties would pay the pre-emption money according to the abovementioned shares. Mr. Shaukat Hayat, Advocate, accetped Ihsan-ul-Haq, plaintiff's statement on behalf of the heirs of Mst. Rabia Bibi, plaintiff, and Mr. Ikramullah Maan, Advocate, accepted that statement on behalf of Haji Nazar Muhammad, plaintiff. Two supplementary statements, one by Ihsand-ul-Haq, plaintiff, and the other by Mr. Ikramullah Maan, Advocate, were also recorded. By them they agreed to pay the registration expenses. These statements were followed by an order of the learned Civil Judge, which was that in view of the statements of Ihsan-ul-Haq, plaintiff and the counsel for the rival pre- emptors, there was no live issue between the plaintiffs. He, therefore, called upon the appellants' counsel to say whatever he wanted to say as regards the appellants' rights. Haji Muhammad Shafi, Advocate, then made a statement that as the appellants' evidence had been closed and as the record stood, there was no evidence in their favour. He was not in a position to controvert the plaintiffs' rights. He, however, asked for time.
11. Basing himself upon this inability of Haji Muhammad Shah, Advocate, to say anything in the appellants' favour, and after referring to the fact that the appellants' evidence stood closed under Order 17, rule 3 of the C.P.C., the learned Civil Judge went on to say that there was no evidence to rebut the plaintiffs' evidence and that it was not proper to adjourn the case. He, therefore, invited the appellants' counsel to address arguments. He then heard the arguments of the plaintiffs' counsel and observing that the appellants' counsel did not address any arguments, for they had led no evidence asked the parties to wait for orders.
12. The next order made was decreeing the plaintiffs' suit {{URDU TEXT}} with the direction that the plaintiffs should deposit the pre-emption money by 12-7-1986 and that the plaintiff, Ihsan-ulHaq, and the legal representatives of Mst. Rabia Bibi, plaintiff, should make up the deficiency in court-fee also by that date. The order closed with the following very significant words: {{URDU TEXT}}
13. Yet we find on the record of the trial Court a detailed judgment of the date 12-6-1986. In that judgment, after referring to the parties' pleadings and to the various stages of the suit and the way the appellants' evidence was closed under Order 17, rule 3 of the CPC on 26-3-1986, the learned Civil Judge noticed at great length the course of the proceedings taken on 12-6-1986 and observed that "in view of the present situation developed during the proceeding, the Court came to the conclusion that there was no dispute in between the rival pre-emptors with regard to their superior right and they have admitted the right of each other, therefore, counsel for vendces-defendants was invited to say whatever he liked in support of right of Ibrahim etc". He went on to say that "the arguments advanced by the counsel for rival pre-emptors were heard. The counsel for vendee defendants did not advance any arguments and as there was nothing on record in the form of documentary as well as oral evidence in support of vendee-defendants, therefore, file was adjourned for a short while for the pronouncement of judgment". Having said so much, he came "to the discussion of issues".
14. On issue No, 1, which reflected the appellants' preliminary objections that the suit property was situated in Chichawatni Town village Chak No,40/12-L Urban Tchsil and District Sahiwal and that the same was the property of the Provincial Government and was governed by the provisions of Colonization of Government Lands Act, the learned Civil Judge referred to a notification dated March, 1973, to which his attention was called by the plaintiffs' counsel, and held that the sale in question was pre-emptible; he also referred to P.W.1's statement, namely, that the land in dispute was situate outside the municipal limits and decided the issue against the appellants. On issues No,2 and 8, the learned Civil Judge returned the finding that Ihsan-ulHaq, plaintiff, was owner in the estate and "he has agreed to give 68 kanals to Nazar Muhammed plaintiff and 36 kanals to the representatives of Mst. Rabia Bibi deceased". As regards Mst. Rabia Bibi deceased, he referred to copy of Jamabandi Exh.D1 to hold that she too was an owner in the estate. He, therefore, held that the plaintiffs were entitled to the land in suit in the shares agreed to by them. Issue No,3 was decided against the appellants, for there was no evidence to support it. On issue No,4, the finding was that the plaintiffs, Ihsan-ul-Haq and Mst. Rabia Bibi, should pay Rs,15,000 as court-fee. Issue No,5 was not pressed by counsel for Ihsan-ul-Haq, plaintiff. Issue No,7 was found in favour of Nazar Muhammad and Mst. Rabia Bibi, plaintiffs; as to issue No,8, the learned Civil Judge held on the admission of the plaintiffs that the sale price was Rs,6,20,000. There was no evidence on issue No,10 and in view of the plaintiffs' statements, the learned Civil Judge held the appellants entitled to Rs,45,010 as incidental charges.
15. In the concluding paragraph of the judgment, we find that the plaintiff, Ihsan-ul-Haq, was directed to pay "the proportionate sale price including the incidental charges, in the total amount of Rs,3,25,990" for his 100 kanals and similarly, Nazar Muhammad and Mst.Rabia Bibi, plaintiffs, were directed to pay Rs,2,21,670 and Rs,1,17,350 for their 68 kanals and 36 kanals respectively.
16. Learned counsel for the appellants referred to the proceedings dated 18-4-1977 to point out that the plaintiffs, Ihsan-ul-Haq and Nazar Muhammad, had appeared as their own witnesses but could not be cross-examined; it was pointed out that on that date, the lawyers, were on strike and had bycotted the Courts. He also called our attention to the orders of the learned trial Court dated 1-3- 1986 and the plaintiffs' joint application of that date and argued that the learned Civil Judge as also the plaintiffs had recognized the justice of the appellants' grievance that they were entitled to an opportunity to cross-examine the plaintiffs. He argued further that as the plaintiffs' statements were in affirmative evidence, they could not be deemed to have closed their evidence till they had been cross-examined and the learned Civil Judge was therefore, wrong in directing the plaintiffs to be cross-examined and the appellants to produce their evidence on the same day. In his view, therefore, the learned Civil Judge was wrong in closing the appellants' right to cross-examine the plaintiffs and was also wrong in closing their evidence by his order dated 26-3-1986. Learned counsel for the plaintiffs did not controvert the fact that lawyers were on strike on 18-4-1977 and that this was the reason that the plaintiffs were not cross-examined on that date. He, however, argued that the plaintiffs were fair enough to agree that an opportunity should be given to the appellants to cross-examine the plaintiffs; in this connection, he referred to the orders dated 22-2- 1986 and the plaintiffs' joint application dated 1-3-1986. This, according to him, they did to avoid the possibility of a revision petition being taken against the order of the learned Civil Judge dated 22- 3-1986 and thereby to avoid further delay. In the opinion of the learned counsel for the plaintiffs, there was nothing wrong with the learned Civil Judge's direction that the plaintiffs should be cross- examined and the appellants should produce their evidence on the same day. According to him, therefore, the order dated 26-3-1986 was fully justified in law and fact.
17. We do not think that the appellants' contention is entitled to succeed. True that the plaintiffs, when they testified as their own witnesses on 18-4-1977, were not cross-examined by the appellants; true also that the reason for their failure to do so was that the lawyers had bycotted the Courts, which fact is borne out by the order dated 18-4-1977 itself. But as has been seen above, the plaintiffs had by making the joint application dated 1-3-1986 realised the justice of the appellants' claim that they should be allowed to cross-examine the plaintiffs before they were called upon to lead evidence and accordingly the plaintiffs were directed to be in attendance on the next date viz. 13-3-1986 for being cross-examined by the appellants. In the circumstances of the case, we do not think that any exception can be taken to the order of the learned Civil Judge directing the cross- examination of the plaintiffs and the production of the appellants' evidence on the same day. On 13-3-1986, a written application was made by the appellants saying that their counsel Sh. Asghar Hamid, Advocate, had to leave suddenly to participate in a meeting of the Pakistan Bar Council. On that date Haji Muhammad Shafi, Advocate, was present for the appellants and he had indicated in writing that Sh. Asghar Hamid, Advocate, , would be available on the following dates viz. 26-3-1986, 3-4-1986, 8-4-1986, 9-4-1986 and 10-4-1986 and a request was made that one of those dates be given to enable the appellants to cross-examine the plaintiffs. Statement of Muhammad Ibrahim, appellant, on the hack of the application was also recorded; he said that he be given one adjournment and that on next date he would not seek adjournment on account of the absence of Sh.Asghar Hamid, Advocate. Thus the date 26-3-1986 was a dated of the appellants' own choice and the suit was adjourned to that date on a clear understanding that if the appellnants wanted to be represented by Sh. Asghar Hamid, Advocate, they would bring him along on that date and that they would not ask for an adjournment on the ground that Sh. Asghar Hamid, Advocate, was, whatever the reason, unable to come. In truth, implicit in the statement of Muhammad Ibrahim, appellant, was the undertaking that if Sh. Ashar Hamid, Advocate, did not come, they would arrange their representation by another counsel. It follows, therefore, that there was no moral or legal justification for the appellants to ask for yet another adjournment on 26-3-1986, again on the ground that Sh.Asghar Hamid, Advocate, was attending the meeting of the Pakistan Bar Council at Karachi on that date. If we may say so, the appellants had made their beds, and they must lie on them.
18. Much was tried to be made of the fact that in view of the Supreme Court's order dated 17-2- 1986, the suit could not finally be decided and, therefore, in exercising his discretion in the matter, the learned Civil Judge should have allowed one more opportunity to the appellants to cross- examine the plaintiffs and to produce their evidence. In that connection, we were referred to the observation of the learned Civil Judge that he had "no option except to reject the application of vendee-defendants No,1 to 3 for further adjournment", the contention being that as the order of the Supreme Court was in operation, the exercise of his discretion was vitiated by the observation that he had no option other than the one adopted by him. The above observation of the learned Civil Judge should not, in our opinion, be read divorced from its context. The context was that the suit was eleven years old and to quote from the order of the learned Civil Judge "no doubt the announcement of final judgment has been stayed by the Honourable Supreme Court but even then the process of trial is to be made complete". We are, therefore, unable to construe the words "no option" as meaning that the learned Civil Judge had no discretion in the matter; that he had the discretion and had been exercising it should be clear from the earlier orders referred to above.
What the learned Civil Judge meant to say, therefore, was that in the circumstances of the case, he would not exercise the discretion in favour of another adjournment.
19. What has been said above, makes it unnecessary to consider the effect of the order of the learned Civil Judge dated 22-2-1986 by which he directed the appellants to lead their evidence and to cross-examine the plaintiffs when they appeared to testify as their own witnesses in rebuttel evidence. That order must be deemed to have been modified by the order of the date 1-3-1986 which was made in the light of the plaintiffs' application that they would submit themselves for cross-examination before the appellants started their evidence.
20. That brings us to the proceedings recorded on 12-6-1986 which proceedings had resulted in the decree in the plaintiffs' favour. Learned counsel for the appellants strongly argued that the entire proceedings of that date were vitiated and were a nullity in law, for the appellants had no notice of that date and whateven Haji Muhammad Shafi Advocate, did on that date purporting to act on their behalf was wholly ineffective as against their rights. He went so far as to contend that the resultant decree was no decree in the eye of law and as no decree could, in view of the law laid down in Said Kamal Shah and Sardar Ali's cases (PLD 1986 SC 360; PLD 1988 SC 287) be passed in the plaintiffs' favour after 31-7-1986, the suits must be dismissed. In that connection, he had strong exception to take to the conduct of Hiji Muhammad Shaft, as an Advocate. According to him in conducting himself as he did, the learned Civil Judge was extremely unfair to the appellants, for one of the plaintiffs, Ehsan-ul-Haq, was his senior colleague and Haji Muhammad Shaft, Advocate was guilty of professional misconduct in not doing all that he could to safeguard the appellants' rights. Learned counsel for the appellants invited us to take into consideration a copy of the complaint under section 41(2)(b) of the Legal Practitioners and Bar Councils Act, 1973 (attached with the appeal) made by the appellants to the Pakistan Bar Council for proceeding against Haji Muhammad Shafi Advocate, for his alleged misconduct, the substance of that complaint being that the plaintiff, Ehsan-ul-Haq, "happens to be Judge of the subordinate judiciary who is currently posted as District and Sessions Judge Bahawalpur" and that "the respondent Advocate fell under the influence of Ehsan-ul-Haq Bhalli, the present District and Sessions Judge Bahawalpur and entered into a criminal conspiracy with him to sabotage and destroy the vested rights of his own clients. The respondent Advocate has thus committed the gravest type of professional misconduct known to law". He contended further that the Urdu order of the date 12-6-1986 did not dispose of the suits on merits, so far as the appellants were concerned, and the English order bearing the date 12-6-1986 was written and made part of the record later. This, according to him, strengthened his contention that no decree was passed on 126-1986. Learned counsel for the plaintiffs on the other hand supported the decree; according to them, 12-6-1986 was a date of hearing in the suit, Haji Muhammad Shall, Advocate, for the appellants had notice of that date and had full authority to act on behalf of the appellants.
20-A. It is noteworthy that the suit was instituted in the Court of the Senior Civil Judge, Sahiwal, where the appellants were represented by Sh. Asghar Hamid, Advocate. It remained pending in that Court till December, 1985, when Chichawatni acquired the status of a Tehsil Headquarter and the suit was transferred to the learned Civil Judge, Chichawatni. It has been seen that the appellants' right to cross-examine the plaintiffs and to produce their evidence 'vas closed under Order 17, rule 3, C.P.C. By the order of the learned Civil Judge Chichawatni, dated 26-3-1986; by the same order, the learned Civil Judge adjourned the suit "to wait for the order of the Supreme Court for 17-4-1986". The appellants' leave to appeal application was dismissed on 31-5-1986 and there is no doubt that the first intimation of that fact was received by the learned Civil Judge from the application of the plaintiff, Ehsanul Haq, dated 12-64986. It is obvious that the effect of the order dated 26-3-1986 was that all that remained to be done, so far as the appellants were concerned, was to hear the parties arguments. Till then, and in point of fact, till 12-6-1986, not only was there a serious contest between the rival preemptors Ehsanul Haq and Haji Nazar Muhammad, but also there was a contest between the plaintiffs and the appellants. Between 26-3-1986 and 31-31986, there was an application by Haji Nazar Muhammad, plaintiff, seeking permission to produce additional evidence and as has been seen above replies to that application had been filed but it stood adjourned to 19-6-1986 for arguments. In the meantime, on 7-6-1986, Haji Nazar Muhammad had made yet another application and that was for permission to amend the list of his witnesses.
That tends to show that Haji Nazar Muhammad plaintiff, wanted to produce evidence to controvert Ehsanul Haq's right of pre-emption. However that may be, the only matter fixed for hearing on 12-6- 1986 was the application of Haji Nazar Muhammad dated 7-6-1986. As has been noticed above, the appellants' counsel Haji Muhammad Shafi, Advocate had received a notice for the date but had written thereon that he would not be able to appear on 12-6-1986 and that notices should go to the appellants. No notices were sent to the appellants at all.
21. Learned counsel for the plaintiffs called to his aid the provisions of Order 3, rule 5, C.P.C. To contend that service of the notice on Haji Muhammad Shafi, Advocate, for 12-6-1986 was service upon the appellants. That rule enacts that "any process served on the pleader and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person".
The rule raises a rebuttable presumption. Also it seems to us, that as the presumption can work to the prejudice of a party and deprive it of the right to be heard, the rule must be construed strictly.
The presumption must, therefore, be confined to the particular process that has been actually served upon the pleader, and the expressions 'any process' and 'for all purposes' construed accordingly. We would hold, therefore, that the only presumption that could legitimately be raised against the appellants was that the notice of Hail. Nazar Muhammad's application dated 7-6-1986 only had been communicated and made known to the appellants. It appears that the way Haji Muhammad Shafi, Advocate, had been treated by the appellants on 13-3-1986 when they had not allowed him even to cross-examine the plaintiffs insisting that the plaintiffs would be cross- examined by their counsel Sh. Asghar Hamid, Advocate, must have shaken his confidence in his authority to act on behalf of the appellants. So if Haji Muhammad Shafi, Advocate, had not appeared before the learned Civil Judge on 12-6-1986, it would have been difficult for the Court to act upon the presumption under Order V, rule 3 of the C.P.C., particularly when notices were directed to be issued to the appellants but were never sent to them.
22. The proceedings recorded on 12-6-1986 appear to leave no manner of doubt that Haji Nazar Muhammad's application dated 7-6-1986 was taken first; this is apparent from the fact that the proceedings were recorded on the back of that application and that the first order of that date on the order-sheet started with the significant observation that the file had been ordered to be produced in connection with the application of Ehsan-ul-Haq, plaintiff, and the following observation, namely, that the parties were present before the learned Civil Judge in connection with the application dated 7-6-1986. It appears also that Haji Muhammad Shafi, Advocate, had, despite his note on the notice and it may well be under the influence of the provisions of Order III, rule of the C.P.C., communicated to the appellants the fact that the application of Haji Nazar Muhammad had been set down for hearing on 12-6-1986 and that the appellants had given him instructions how to proceed with the matter. He therefore, by his statement before the learned Civil Judge, agreed that the application of Haji Nazar Muhammad should be granted.
23. We are, however, perfectly clear in our mind tha in no event could the physical presence of Haji Muhammad Shafi, Advocate, before the learned Civil Judge on 12-6-1986 be regarded as his presence for the purposes of the decision of the suit. It has been seen that the process served on Haji Muhammad Shafi, Advocate, for 12-6-1986 was the process relating to the application of the date 7-6-1986. Admittedly, the appellants had no notice of the application of Ehsan-ul-Haq, plaintiff, dated 12-6-1986 and as Haji Muhammad Shafi, Advocate, learnt of that application when he was before the learned Civil Judge in connection with the application dated 7-6-1986, he had no time to communicate with the appellants and to receive instructions from them as to how to proceed with the suit. True that the Supreme Court had dismissed the appellants' leave to appeal petition and the plaintiffs were well within their right to ask for an early decision of the suit. The question, however, is whether the learned Civil Judge was fair to the appellants in proceeding as he did. We have no doubt in our mind that the least that the appellants were entitled to was a notice informing them that the suit would be taken up for hearing on a specified date. Instead, what the learned Civil Judge did was to call upon Haji Muhammad Shafi, Advocate, there and then to say if he had any objection to raise to the matter being proceeded with. Till then, all concerned including the learned Civil Judge and Haji Muhammad Shall, Advcocate, thought that they would be dealing with the miscellaneous applications including those of Haji Nazar Muhammad, plaintiff. It was when hearing arguments on those applications and when the plaintiffs indicated to the learned Civil Judge that they had, among themselves, reached an understanding that the learned Civil Judge recorded the statement of the plaintiffs' counsel and then again called upon Haji Muhammad Shafi Advocate, to say what he had to say to controvert the plaintiffs' right of pre-emption. He said that as the record stood, he was unable to say anything yet he asked for time. If he had instructions to argue the merits of the suit And had not been taken by surprise, he could at least challenge the right of Mst. Rabia's legal representatives to pre-empt. (It is to be noted that this point was not adverted to even by the learned Civil Judge). Earlier he had informed the learned Civil Judge that according to his instructions, the appellants were intending to invoke the revisional jurisdiction of this Court.
24. It ought to be mentioned here that the revision petition bearing No, 394 of 1986 against the order of the learned Civil Judge dated 26-3-1986 was filed in this Court on 12-6-1986 and by this Court's order dated 16-6-1986 record of the trial Court was called for.
25. All these facts combine to compel us to the conclusion that though Haji Muhammad Shafi, Advocate was physically present before the learned Civil Judge, yet that could not be regarded as the presence of the appellants for the purposes of the suit. Under Order V, rule 1 of the C.P.C., a defendant may appear in person or by a pleader duly instructed and able to answer all material questions relating to the suit or by a pleader accompanied by some person able to answer all such questions. Here, all the circumstances are against Haji Muhammad Shall, Advocate having been instructed by the appellants to appear and act on their behalf on 12-6-1986 and to argue the suit on its merits. It was held in Basalingappa Khushappa Kumbhar and others v. Shidramappa Irappa Shivanagi and another AIR 1943 Bombay 321 (F.B.) that "if the pleader is present in Court on any day of hearing but has no instructions as to how to proceed with the case, there is no appearance of the defendant"; that "where there is a pleader physically present, who is not in a position to conduct the case, there is no representation of the defendant so as to give to the suit the character of a defended action" and that this principle applies "not only to a pleader who has been engaged only for the purpose of asking an adjournment but also to the pleader who has been engaged from the beginning but who has not received instructions at any particular stage". We respectfully adopt this enunciation of law and hold that the physical presence of Haji Muhammad Shafi Advocate, on 12- 6-1986 before the learned Civil Judge was in connection with the application of Haji Nazar Muhammad dated 7-6-1986 only and that he had no instructions from the appellants to argue the suit on its merits on their behalf on that day that for the purposes of arguments in the suit on its merits, there was no representation of the appellants. It is manifest from the facts of the case that the compromise agreeing to the division of land, was among the plaintiffs and that was reached, if we may say so, on the spur of moment, when the miscellaneous applications were being considered. Till then, Haji Nazar Muhammad plaintiff, had been hotly contesting the claim of the other two plaintiffs to pre-empt the sale. The appellants could not, therefore, conceive that on 12- 6-1986, the plaintiffs would join together and they would be called upon to address arguments on the merits of the suits. Granting that Sh. Asghar Hamid, Advocate, was not the appellants' counsel for Chichawatni, there was nothing to prevent the appellants from engaging him for Chichawatni.
In fact, the learned Civil Judge had himself allowed two adjournments to the appellants to enable them to avail of the services of Sh. Asghar Hamid, Advocate. One of the applications for adjournment was signed by Sh. Asghar Hamid, Advocate. This shows that the appellants had engaged him to act for them. In the circumstances, the absence of a fresh power of attorney was of little consequence, for he could file such a power of attorney at any time.
26. Understandably, in view of the law declared in Said Kamal Shah's case, namely, that the Punjab Pre-emption Act, 1913, would cease to have effect with effect from 31-7-1986, the plaintiffs were anxious to see that their suits were decided before that date. The appellants must also have been equally anxious to delay the decision of the suit till after the target date. But the matter was before a Judge. As Aristotle said, as long ago as 322 B.C. Men have recourse to a Judge when disputes occur; to go to Judge is to go to justice, for the ideal Judge is so to speak justice personified. Also, men require a Judge to be a middle term or medium, for they think that if they get the mean, they will get what is justice. Thus, the just is a sort of mean, inasmuch as the Judge is medium between the litigants and restores equality (see the Great Legal Philosophers by Clarence Morris at page 19).
It was, therefore, for the learned Civil Judge to strike a balance between those competing interests and to be fair to both the parties. Indeed, the need to be fair is the greater where by reason of the status in life of one of the parties, the other party apprehends, or is likely to apprehend that he will not be dealt with fairly. However, the unfortunate impression that we gain from the proceedings recorded on 12-6-1986 is that in acting as he did, the learned Civil Judge exhibited undue haste and if we may say so, indecent zeal. This involved him in the contravention of two fundamental principles of judicial procedure, namely, that justice should not only be done, but should also be seen in the doing and that no man shall be condemned unheard.
27. We also find considerable force in the contention that when the Urdu order dated 12-6-1986 was written, the English judgment which, as has been seen, decided each issue on its merits, was not in existence. Ordinarily, where a suit is disposed of by an English judgment, the Urdu order follows the English judgment and the standard form of words used is{{URDU TEXT}}. These words are conspicuously absent from the Urdu order of the date 12-6-1986. Then, it has been noticed that the judgment in English was in one very material respect inconsistent with the Urdu order of the date 12-6-1986. It is that in the Urdu order, only the area of land each plaintiff was to get was mentioned, leaving it to the plaintiffs to calculate the proportionate price but in the English judgment, the share of the pre-emption money, each plaintiff was to pay, was calculated and mentioned in figures. It seems to us, therefore, that while writing the Urdu order, the learned Civil Judge thought that the suit was being decided on the basis of compromise and that that order was sufficient to dispose of the suits and that subsequently, some body thought of this serious lacuna, namely, that the appellants were not parties to the compromise and that a separate judgment disposing of each issue on the merits was necessary to be written. All this shows and shows clearly that the English judgment was conceived and written later.
28. All that remains to be considered is the effect of these findings of fact, involving as they do the violation of one of the first principles of justice, namely, that no man shall be condemned unheard, also called the principle of fairness, which was described in Kandas' case (1962) A.C. 332 as one of the twin pillars supporting natural justice. It is now well-established that it is not merely an acceptable but an essential part of the philosophy of our law that "this conception of natural justice should at all stages guide those who discharge judicial functions". (Wiseman v. Borneman (1969) 3 All ER 275; also see Muhammad Ramzan Qureshi's case PLD 1986 F.S.C. 200 and Pakistan v.
Public-at-Large PLD 1986 SC 240. It has long been settled that a decision which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority. (A.Q. v. Ryan (1980) A.C. 718, 729, 730) and, therefore, the purported decision so arrived at is a nullity. We hold, therefore, that the decrees passed in favour of the plaintiffs were no decrees in the eye of law and were a-nullity.
29. Learned counsel for the plaintiffs invited us to now decide the suits on their merits and to bold that the plaintiffs are entitled to have their suits decreed. That course would indeed have been open to us, were it possible now for a decree to be passed in the plaintiffs' favour. But as we are of the view that the decrees in question are no decrees in the eye of law and in view of the dicta in Said Kamal Shah and Sardar Ali's cases PLD 1986 SC 360 and PLD 1988 SC 287, no decree can now be passed in the plaintiffs' favour, we cannot but decline the invitation.
30. For the above reasons, the appeal is accepted, the judgments and decrees in question are set aside and the plaintiffs' suits are dismissed.
31. The revision petition is dismissed.
32. In the circumstances of the case, the parties are left to bear their own costs. /Revision dismissed.