1995 PLP 211 (MLD)

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Exercise of‑‑‑Right of appeal against judgment of Court below was available to petitioner; but he without availing that right filed Constitutional petition‑‑‑Constitutional petition filed by petitioner, was not competent in view of the fact that when statutory right of appeal was available and that right was adequate as well as efficacious, High Court would not allow invocation of extraordinary Constitutional jurisdiction. Munir Ahmad Bhatti for Petitioner. Aslam Riaz Hussain for Respondent.` f'' Date of hearing: 25th May, 1994. This judgment will dispose of two Writ Petitions (11283 and 11284 of 1991) as the questions of fact and law involved in both these petitions are one and the same.

2. Syed Muhammad Taqi Shalf, petitioner, in both these petitions, filed two suits on 20th May, 1990 to pre‑empt the sale of land made in favour of Sadaqat Ali and Nizakat Ali, respondents in the two petitions' vide two mutations sanctioned on 1st February, 1990. The pre‑emptor had claimed that he is possessed of superior right of pre‑emption being participator in the source of irrigation as well as in the passage. The suits were dismissed by the trial Court vide judgment and decree dated 29th July, 1990 relying on the judgment in the case of Suo Motu Shariat Review Petition No.l/R of 1989: PLD‑ 1990 SC

865. The petitioner on 21st October, 1990 moved applications under section 36 of Ordinance XVIII of 1990 seeking restoration of suits. These applications were dismissed by the trial Court on 14th February, 1991 referring to judgment in the case of Muhammad Ismail v. Mst. Sakina Bibi PLD 1991 Lah. 60 and with the observation that benefit of section 36 cannot be availed of as the suits were neither decided nor were pending between the crucial period, that is, 31st July, 1986 to 29th March, 1990. The order rejecting the applications was then challenged in appeals which were also dismissed vide order dated 25th April, 1991. Syed Muhammad Taqi Shah, petitioner, filed two revision petitions in this Court which were, however, withdrawn and thereafter the present Constitution petitions were filed.

3. Learned counsel in support of the writ petitions argued that the law of pre‑emption having been promulgated and enforced with effect from 29th March, 1990 by promulgation of Ordinance V of 1990, suits of pre‑emption filed on 29th May, 1990 should have been proceeded with and decided in accordance with the said law and in the circumstances the rule laid down in PLD 1990 SC 865 or in PLD 1991 Lah. 60 (supra), was not applicable. Learned counsel, however, conceded that in the circumstances in which the suits were dismissed by the trial Court, the provisions of section 36 of Ordinance XVIII of 1990 were not attracted.

4. Mr. Aslam Riaz, Advocate, learned counsel for the respondent, in reply, submitted that in view of the plea taken with regard to non‑applicability of section 36 of Ordinance, the order, dated 19‑2‑1991 rejecting the application and the order, dated 25‑4‑1991 dismissing the appeal are legal and the challenge made to these orders is infructuous. As regards the challenge to judgment dated 29‑7‑1990 dismissing the suit, it was urged, that the said judgment being appealable cannot be challenged in Constitutional jurisdiction. Learned counsel for the petitioner, however, submitted that the judgment, dated 19‑1‑1990 being not sustainable in law, this Court' should intervene to do justice in exercise of extraordinary Constitutional jurisdiction.

5. I have considered the respective submissions of learned counsel for the parties. The judgment dated 29‑7‑1990 dismissing the suit on the basis of dictum laid down in the case of Suo Motu Shariat Review Petition No.l/R of 1989: PLD 1990 SC 865 cannot be sustained in law as the suit when filed (20th May, 1990) law of pre‑emption existed on the statute book in view of promulgation of Ordinance V of 1990 and even on the date of sale, that is, 1‑2‑1990, the Muslim law of pre‑emption was in vokable as is held in the case of Ghulam Hamdani v. Muhammad Iqbal and 9 others 1993 SCMR 1083. The learned trial Court, therefore, could not dismiss the suit summarily. However, the question is whether this Court in exercise of Constitutional jurisdiction should intervene when admittedly right of appeal against the judgment dated 29‑7‑1990 was available under the law. It is well established that when statutory right of appeal is available and that right is adequate as well as efficacious, this Court will not allow invocation of Constitutional jurisdiction.

6. Learned counsel for the petitioner at this stage, submitted that as much confusion prevailed on the subject of law of pre‑emption, the petitioner is entitled, to seek condonation of delay. This plea cannot be adjudicated upon by me in the present proceedings as no such question is involved in these matters. This question will arise, if the petitioner chooses to file appeals against the judgments and decrees passed in the two suits. These pleas, if raised, before the appropriate forum will, of course, be attended to and disposed of in accordance with law‑The fact, however, remains that this Court in view of the fact that statutory right of appeal was available to the petitioner, should not allow invocation of extraordinary Constitutional jurisdiction. For all these reasons, both the Writ Petitions (11283 and 11284 of 1991) fail and are dismissed leaving the parties to bear their own costs. H.B.T./M‑1728/L Petition dismissed.