1989 SCMR 2015 (PLP)

SAAD SAOOD JAN, J.‑‑These are two petitions for leave to appeal from the judgments dated 17‑10‑1988 and 24‑5‑1988 of the Lahore High Court. These petitions raise a common question of law and for that reason, have been heard together.

2. Petitioner in C.P. No. 50 brought a suit for pre‑emption, basing his superior right on the assertion that he was a co‑sharer in the estate. On 21‑4‑1987, the trial Court dismissed the suit on the ground that after the decision of the Shariat Appellate Bench of this Court in Said Kamal Shah's case P L D 1986 S C 360, it was no longer maintainable. The petitioner filed an appeal before the Additional District Judge, Okara but it was dismissed on the ground of limitation. He then preferred a second appeal in the High Court. A learned Single Judge dismissed it on the authority of the decision of this Court in Sardar Ali v. Muhammad Ali P L D 1988 S C 287.

3. The petitioner in C.P. No. 713 too is a pre‑emptor who based his claim to superior right on the assertion that he was a collateral of the vendor and a co -sharer in the estate. His suit was decreed by the trial Court on 26‑9‑1987 but in first appeal, again on the authority of the rule laid down in Sardar Ali's case, ibid, a Division Bench set aside the judgment and decree of the trial Court and dismissed the suit.

4. In support of these petitions it is contended that as the petitioners had instituted their suits before the announcement of the judgment in Said Kamail Shah's case, ibid, the declarations made therein were not applicable to them and IA as such the High Court was not right in holding that no decree could be granted I to them after 31‑7‑1986, that is, the date specified by the Shariat Appellate Bench. This contention was also raised in Sardar Ali's case and was rejected with the observations: "In the light of the foregoing analysis and interpretation of the provisions of the Constitution itself, it is clear that pending cases in the pre‑emption matters were to continue to their logical ends without a vacuum and the decrees passed in the meanwhile before 31‑7‑1986 would have effect accordingly. But in cases where only suits were filed or proceedings were pending without culmination into decrees in favour of the plaintiff before that date, no fresh decree could be passed subsequently; because those laws ceased to have effect on that date rendering such subsequent fresh decrees without contemporaneous legal support." The judgments of the High Court in these two petitions are in accord and are therefore unexceptionable. The petitions are with these observations dismissed. Petitions dismissed. M.A.K/G‑211/S