2002 PLP 231 (CLC)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Revisional jurisdiction, exercise of‑‑‑In absence of any illegality, infirmity or material irregularity in concurrent judgments of the two Courts below, revision petition filed before High Court was devoid of any merits and was liable to be dismissed. (d) Precedent‑‑‑ ‑‑‑‑ Leave granting order by the Supreme Court is not a precedent. Malik Noor Muhammad Awan for Petitioner. Malik Muhammad Qasim Joya for Respondents. Date of hearing: 8th August, 2001. This revision petition is directed against the judgment and decree, dated 16‑2‑1991 passed by the District Judge, Mianwali whereby the appeal filed by the petitioner was dismissed and the judgment and decree of the trial Court, dated 23‑7‑1990 was upheld.

2. Brief facts of the case are that a suit for possession through pre emption was filed on 30‑5‑1990 from the sale‑deed, dated 28‑9‑1989. The trial Court as well as the First Appellate Court dismissed the suit for the petitioner on the sole ground of limitation.

3. Learned counsel for the petitioner argued that the period of limitation in the instant case was one year. In support of his arguments the learned counsel for the petitioner relied on case titled Bashir Ahmad v. Nazeer Ahmad Khan reported as 2000 SCMR 1850 and cast titled Muhammad Hussain and others v. Muhammad and others reported as 2000 SCMR

367. On the other hand the learned counsel for the respondent placed reliance on 1993 CLC 2053, 1993 CLC 105, PLD 1994 Lah. 263, 1993 SCMR 1083 and 2001 CLC 1291. The learned counsel for the petitioner has argued that the time for filing the suit in his case was that of one year and that the Courts below were not legally justified to non‑suit him on the question of limitation. The main thrust of the arguments of the learned counsel for the petitioner was based on the case of Muhammad Hussain and others v. Muhammad and others. The case relied by the learned counsel for the petitioner is not relevant because it was a case under N.‑W.F.P. Pre‑emption Act, 1987 wherein under section 31 of the Act a period of one year was provided as a time for filing the suit for pre‑emption. This period of one year was later curtailed to 120 days and this amendment was' made effective w.e.f. 31-12-1991. Therefore, this case is not of any help to the petitioner nor it advances the plea taken by him. The second case of Bashir Ahmad v. Nazeer Ahmad Khan is a leave granting order and it is settled principle of law that the leave granting order by the Honourable Supreme Court of Pakistan is not a precedent. The other judgments relied by the learned counsel for the petitioner i.e. Sarup Singh and another v. Pal Singh and another 1923 Lah. 642 and a judgment of the Privy Council in case Yew Bon Tev v. Kederaan Bas Mara 1983 PSC 1200 are also not relevant because the question of limitation for filing the suit stands settled after the enforcement of Punjab Pre‑emption Ordinance, 1990 which was enforced on 28‑3‑1990. The petitioner admittedly filed the suit on 30‑5‑1990, therefore, in his case the time limit could be four months at the maximum and ostensibly the suit was barred by time.

4. Admittedly the sale took place on 28‑9‑1989 and the suit was filed on 30‑5‑1990 i.e. after a period of eight months and three days. During the relevant period, there was no statutory law holding the field, as after the judgment in Said Kamal's case the law had to be enacted on the lines of principles enunciated by apex Court in Said Kamal's case. The first statute promulgated was Punjab Pre‑emption Ordinance, 1990 which was enforced on 28‑3‑1990. In the instant case, the sale was prior to enforcement of the Ordinance but the suit was also filed after enforcement of Ordinance. Although no statutory time limit for filing the suit was there but the principles of Islamic Law and Jurisprudence held the field. The observation in Said Kamal's case relating to limitation in a suit for pre‑emption was opined to be as one month and in subsequent statute, a period of four months was prescribed. Keeping in view the provisions of Islamic Principles of Jurisprudence, the suit of the petitioner which was filed after eight months and three days of the sale was not within a reasonable time and the findings of the two Courts below were in accordance with law.

5. As no illegality, infirmity or material irregularity is observed in the judgments of two. Courts below, thus, the revision petition is devoid of any merit and the same is dismissed. H.B.T./M‑797/L Revision dismissed.