2004 PLP 102 (YLR)

Mian Shoukat Hussain for Respondents. Date of hearing: 10th October, 2003. Mst. Islam Bibi petitioner/plaintiff filed suit for possession through pre emption of land mentioned in the heading of the plaint against the respondents/ defendants. The said suit was resisted by respondents by filing written statement. The learned trial Court framed issues on 12‑10‑1992 and dismissed the suit vide judgment/decree dated 20‑4‑1993 being barred by time. The petitioner filed Appeal No.37/13 in the Court of learned Additional District Judge, Charsadda, which was also dismissed vide judgment/decree dated 27‑10‑1994. Being not contented with the judgments and decrees of the Courts below the petitioner has filed the revision petition in hand.

2. Syed Walayat Ali Shah, Advocate the learned counsel representing the petitioner argued that the suit filed by the petitioner was within time, but the Courts below failed to appreciate the law applicable to the case.

3. On the Other hand the learned counsel for the respondent (Mian Shaukat Hussain, Advocate) argued that the suit filed by the petitioner was barred by time and the Courts below have rightly appreciated the legal position.

4. It was also argued that the concurrent findings of the Courts below cannot be disturbed while exercising revisional jurisdiction. .

5. I have heard the learned counsel for the parties and perused the record.

6. Section 31 of the N.‑W.F.P. Pre emption Act, 1987 was amended by Amendment Act, 1992, but the said amendment was given retrospective effect I from 31‑12‑1991. From careful reading of section 1(2) of the N.‑W.F.P. Pre‑emption (Amendment) Act, 1992 it is clear that though the Amendment Act of 1992 came into force on the date of its enactment which was 16‑12‑1992, but its provisions were given effect from 31‑12‑1991. It, therefore, follows that the period of limitation, which was originally prescribed by section 31 of the N.‑W.F.P. Pre emption Act, 1987 as one year stood curtailed to 120 days. The question which needs consideration is as to whether the suit filed by the petitioner/plaintiff was within time or not. Answer to this question is that the suit filed by the petitioner was well within time. The same proposition came up for hearing before the august Supreme Court of Pakistan in Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367, wherein it was held:‑‑ However, the question which arises for consideration is, whether the words used in section 1(2) or Act X of 1992 are wide enough to take away the vested rights or to undo past and closed transactions. In our view, by merely providing in subsection (2) of section 1 ibid that the provisions of the Act shall be deemed to have taken effect from 31‑12‑1991, the suits already filed in accordance with the existing provision of section 31 of Act of 1987, could not be rendered non‑maintainable. "

7. Since the suit in hand was filed on 19‑4‑1992 i.e. before enactment of Act X of 1992, therefore, it was pending when the above mentioned Act was enacted on 16‑12‑1992. The suit in hand could not be dismissed on the ground that the limitation prescribed under section 31 of the Act. 1987, stood curtailed as a result of amendment brought about through Act X of 1992. The said amendment was applicable to the suits or proceedings initiated on or after 16‑12‑1992 in accordance with the amended provisions of section 31 of Act. 1987. The Courts below have failed to appreciate this position. I, therefore, allow the revision petition, set aside the impugned judgments and decrees passed by the Courts below and remand the case to the learned trial Court to record evidence of the parties and then decide the suit on merits strictly in accordance with law within a period or 6 months. Parties are directed to appear before the learned trial Court on 22‑10‑2003. Office is directed to send the record back to the Court concerned immediately. H.B.T./956/P Revision allowed accordingly.