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10. The learned Senior Counsel appearing for the petitioner vehemently urged the petitioner to be entitled to the right of pre-

emption, as was ordered by the ADJ in another suit between the same parties being Suit No. 899/2008, titled as Hari Krishan Vs. Kusum Sanghi. It was submitted by the learned Senior Counsel that since the sale of the property was ordered to be made by inviting bids in sealed covers, the petitioner could exercise his right of pre-emption by bidding "at such sale", i.e. on the day the bids were opened and he learnt of the bid that he had to match. He submitted that the bid of the petitioner being higher than that of M/s. Bharti (RBM) Holding Pvt. Ltd. by Rs.9.00 crore, this was his statutory right to have his bid accepted as per Section 6(3) of the Partition Act as also Order 21 Rule 88 CPC. Learned Senior Counsel for the petitioner drew my attention to the Statement of Objects and Reasons of the Partition Act, 1893 and also sought to rely upon the decision of Full Bench of the Allahabad High Court in Govind Dayal Vs. Inayatullah, ILR 7 Allahabad 776 to contend that the right of pre-emption is not a right of „re-purchase‟, but that of „substitution‟ in place of the vendee.

19. The petitioner sought to claim his right of pre-emption based on Order XXI Rule 88 of CPC before the Court of ADJ when the sealed bids were opened and the highest bid of M/s Bharti (RBM) Holdings Pvt. Ltd. was accepted, by offering the amount higher than that of it. The learned ADJ observed, and rightly so, that provisions of Order XXI Rule 88 CPC are not applicable since the petitioner did not give any bid in the manner as was envisaged in the process of bidding, one of the terms of which being deposit of 10% of the bid amount along with the bid. The contention of the learned Senior Counsel for the petitioner is that the petitioner could not have given his bid matching that of the highest bidder, before the bids were opened in the Court on 11th September and that by having given his offer of higher amount i.e. of Rs.165.00 crore, he had the statutory right of pre-emption under Order XXI Rule 88 CPC as also under Section 6(3) of the Partition Act.

(emphasis supplied) Sec. 6(3) of the Partition Act, 1893 is as follows:

"If two or more persons, of whom one is a shareholder in the property, respectively advance the same sum, at any bidding at such sale, such bidding shall be deemed to be the bidding of the shareholder." (emphasis supplied)

21. The learned senior counsel relied upon the decision of Govind Dayal (supra) to assert the right of pre-emption of the plaintiff. It is noteworthy that the material essential of right of pre-emption which were laid down in Govind Dayal related to the classic pre-emption of Mohammedan Law, which was legislated in the Punjab Pre-emption Act. It was in the context of Punjab Pre-emption Act, which recognized the concept of classic pre-emption as statutory right that it was held to be right of substitution of the co-sharer in place of the vendee.

23. The instant case does not relate to codified statutory law of pre- emption as is contained in Punjab Pre-emption Act or in some other parts of the country. Undisputedly, there is neither any Pre-emption Act in Delhi, nor the Punjab Pre-emption Act is extended to Delhi, like some other statutes. If that is so, the law of substitution as contained in the Punjab Pre-emption Act or the concept of classic pre-emption of mohammedan law, would not be applicable. It is also not the case of the petitioner that there is any such statutory law of pre-emption under which he was claiming such a right.