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2013 DIGILAW 1640 (PNJ)

Salim s/o Qadar Bux v. Munir Khan s/o Rahim Khan

2013-12-09

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan, J. (Oral):- Both the appeals are connected and they address the same facts of the rights of the tenant to seek for enforcement of the right of preemption. The facts are drawn from RSA No.3013 of 1984 and the reasoning adopted in one would apply to the other case as well. 2. The plaintiff’s suit for preemption was filed on his claim that he was a tenant in respect of the premises from its original owner but the same had been made a subject of sale in favour of the defendant on 16.03.1983. The suit was filed on 15.03.1983. It appears that there had been a suit instituted before the revenue authority for eviction of the tenant on certain grounds under the Punjab Security of Land Tenures Act and an order of eviction was passed on 13.02.1984. The suit came to be dismissed on the ground that on the day when the decree was passed, the tenant had lost the right and since he had been ordered to be ejected, he cannot secure the relief of preemption. The plaintiff’s appeal was dismissed by the appellate Court and the second appeal is before this Court against assailing the judgments rendered by the courts below. An application has been filed under Order 41 Rule 27 CPC to file as additional evidence and an order of the Financial Commissioner setting aside the orders passed by the authorities below on the ground that he had not been served in respect of the proceedings, the order of ejectment was, therefore, liable to be set aside. This order of the Financial Commissioner was passed on 08.09.1989. 3. The learned counsel for the plaintiff-appellant would contend that his own prayer for preemption was denied only on account of a contemporaneous order passed by revenue authority directing ejectment and if that order had been annulled in the quasi judicial hierarchy by the order of the Financial Commissioner, the benefit of said order must avail to him and the plaintiff shall be given the right of preemption. 4. The learned counsel for the respondents would contend that on the day when the suit was disposed of, namely, when the judgment was delivered on 27.03.1984, he had been already ordered to be ejected and he had lost the status of the tenant. 4. The learned counsel for the respondents would contend that on the day when the suit was disposed of, namely, when the judgment was delivered on 27.03.1984, he had been already ordered to be ejected and he had lost the status of the tenant. The fact that the said order was set aside by the Financial Commissioner is irrelevant, for, the right of preemption being a weak right ought to be proved as existing on the day when the sale was made, on the date when the suit was instituted and also on the day when the decree was passed. There had been no right for the plaintiff at the time when the suit was taken for conclusion in the first court and, therefore, the plaintiff cannot secure the relief. 5. The learned counsel would also posit before me a submission that there are certainly two views possible: (i) that the plaintiff’s right on the day when the case was taken up and disposed of, the right cannot revive by a modification of the order of eviction passed by the authorities at the appellate Court; The contra view, viz., (ii) that such a right can revive by a modification by an appellate authority since the appeal must be taken as continuation of the suit. In terms of the decision in Than Singh and others Versus Nandu and others-AIR 1978 (Punjab) 94, the Full Bench was paraphrasing its conclusions in the following manner:- “(1) that it is open to the plaintiff (pre-emptor) to establish that the transaction in suit is in reality a sale and not an exchange or gift and that the Courts can enquire into the true nature of such a transaction. Under the Evidence Act also, there is no bar to lead evidence to prove certain transaction as a sale; (2) that the vendor can defeat the right of the pre-emptor by all legitimate means; (3) if two views are possible, then the one which defeats the right of the pre-emptor has to be accepted; and (4) if the courts below have arrived at a finding that a certain transaction is a sale, exchange or gift, as the case may be, then this finding is not open to scrutiny in the second appeal.” The counsel would point out to me particularly to clause (3) and contended that the Court must prefer the first view which was urged by the counsel for the respondents and would seek for dismissal of the suit. 6. The fundamental position relating to a claim for preemption for a tenant would reside on the following postulates:- (i) The plaintiff shall be a tenant in respect of the property which was sold on the date of sale; (ii) On the date of institution of the suit, he continued to have the status as a tenant; (iii) When the Court was disposing of the case granting a decree, the right must subsist. The point of controversy is whether the right must at all times exist in the court of first instance inevitably and if the first court did not grant a decree, for a circumstance did not exist in favour of the tenant, a change of circumstance by a modification of the order but for which the suit could not have been dismissed would make a difference. This enigma could be resolved only by raising a basic question of what we deal with in courts, namely, when does the right through a decree conclude? So long as there are several tiers of adjudicatory bodies, every order in an appellate form supplants an order passed by the lower court. The right that the court recognizes and grants shall inevitably be on the date when the court passes an order. An appeal will be taken as a continuation of a suit till all remedies are exhausted. An appellate remedy is never an illusory remedy, for, it should be possible for a plaintiff to contend every argument that was tenable at the trial Court and would also be competent to show any subsequent event that would be relevant to his cause. An appeal will be taken as a continuation of a suit till all remedies are exhausted. An appellate remedy is never an illusory remedy, for, it should be possible for a plaintiff to contend every argument that was tenable at the trial Court and would also be competent to show any subsequent event that would be relevant to his cause. If the appellate Court had before it a situation that the ground which was urged to non-suit the plaintiff did not any longer exist and his status as a tenant was restored by an order of a revenue authority which was a modification of the earlier orders, such variation of the order and change of circumstance cannot become irrelevant. To me, if the position of law is understood that the appeals are continuation of suits, then the fact that the appellate forum has restored the plaintiff’s right as a tenant and set aside the orders of ejectment ought to secure a full benefit of a right of preemption that is claimed by the plaintiff. 7. The Full Bench disposition that if two views were possible, one that defeats the right of preemptor has to be accepted cannot be understood in the manner propounded by the counsel for the respondents. The counsel for the respondents argues that his argument must be taken to be another view and, therefore, it has to be accepted. If this contention were to be accepted, then every suit of a plaintiff seeking preemption could be defeated by an argument that in the defendant’s contention that the plaintiff was not entitled to the relief and that should also qualify for a particular view. I would understand the two views which were contemplated by the Full Bench as the two views which are judicially pronounced and approved by court. For me, there are no two views possible as regards the position that the appeal is a continuance of the suit. A landlord securing an order of ejectment cannot conclude the issue of whether the plaintiff had lost his status as tenant. I asked the counsel to let me know as to when the plaintiff had lost possession by virtue of the first order and eviction passed on 13.02.1984. I am unable to elicit any direct information from the records as to when the plaintiff allegedly was ejected by the first order passed by the revenue authority on 18.02.1984. I asked the counsel to let me know as to when the plaintiff had lost possession by virtue of the first order and eviction passed on 13.02.1984. I am unable to elicit any direct information from the records as to when the plaintiff allegedly was ejected by the first order passed by the revenue authority on 18.02.1984. A landlord’s attempt to evict a tenant and securing an order of ejectment does not put an end to the status of a tenant so long as he keeps the litigation alive and secures to him the benefit of reversal of order which allows for continuation of the right to be in possession. Assuming for the arguments’ sake that the possession was lost on account of the first order of ejectment, on the reversal of the judgment entitling the tenant to secure back possession, the old position of his status as a tenant must be taken to be available fully, so that the right of preemption that he seeks for enforcement must be taken as available to him by virtue of the order of ejectment being set aside at a higher forum. 8. The learned counsel for the respondent states that independently of the order that was passed on 08.09.1989, there had been yet another litigation that was started against the tenant for a subsequent year that secured to a landlord an order of ejectment. I will not allow for any other event by a landlord securing an order of ejectment as going to liquidate the tenant’s right of preemption if the parameter on the 3 dates which were relevant were satisfied. The substantial questions of law that I have raised would therefore require to be answered thus: (i) that a tenant by merely suffering an order of ejectment which is not carried through to dispossess him will not result in loss of right of preemption; (ii) if that order of ejectment itself is set aside or modified and the tenant’s status to continue in possession is revived, so long as the suit was pending in higher forum, the plaintiff would have the benefit of such modification of the order and enable him to secure a right of enforcement of preemption. 9. The orders passed by the courts below are set aside and the second appeals are allowed. 10. 9. The orders passed by the courts below are set aside and the second appeals are allowed. 10. The plaintiff is directed to deposit the amount which was the value of the property brought at the sale, namely, sale consideration and registration charges, within 8 weeks from the date of receipt of copy of this order. ———————