2001 PLP 1996 (CLC)

6. I have heard the learned counsel for the parties and perused the record. After remand of the case by the Honourable Supreme Court of Pakistan, on perusal of the inquiry report, dated 25‑2‑1999 of the learned District Judge, Sargodha, this fact has been established that the impugned judgment and decree of the trial Court was passed on 31‑7‑1986, and regarding the date of judgment and decree no controversy is existing between the parties.

7. The learned counsel for the petitioner argued that the decree, dated 31‑7‑1986. granted by the trial Court is valid and has been illegally set aside by the First Appellate Court. To strengthen his point of view he has relied on Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899, Bahadur Khan v. Muhammad Yousaf etc. 1992 SCMR 2117, Muhammad Latif v. Shams‑ud‑Din and others 2000 CLC 340 and PLD 1986 SC

360. Conversely, the learned counsel appearing on behalf .of the respondent argued that the judgment and decree, dated 31‑7‑1986 is not warranted under the law. The learned counsel placed reliance on Said Ameer Khan v. Mst. Shahzadi Khatoon and others 1993 SCMR 2050, Syed Hassan Mehmood v. Bashir Ahmad and 6 others 1994 SCMR 1624 and Ch. Bashir Ahmad v. Ghulam Rasool through Legal Heirs and others PLD 1994 Lah. 13, Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Sardar Ali and another v. Muhammad Ali and others PLD 1988 SC 287.

8. I have given my conscious consideration to the case‑law cited by both the parties. In case Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said' Kamal Shah PLD 1986 SC 360 the order of the Court was as follows:‑‑ "On merits, following the majority point of view, Appeals Nos.4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani, J. If possible a consolidated law of pre emption be enacted accordingly till 31‑7‑1986." In this view of the matter, it is clear that Pre‑emption Act, 1913 ceased to have effect on 31‑7‑1986. In Sardar Ali and another v. Muhammad Ali and others PLD 1988 SC 287 following questions were before the Honourable Supreme Court:‑‑ "One, that suit filed before 31‑7‑1986 would be decided in accordance with the previous laws till the final stage. Two that notwithstanding the change in law, a decree of pre‑emption obtained prior to that date, will continue to have effect subject of course to the modification thereof in accordance with the law under which it was passed; however, if no such decree was passed prior to that date, it could not be passed subsequent to it. And three, that not only the suits pending on that date will abate but also the decrees obtained prior to it will be annulled by the higher forums in duly filed proceedings on the basis of the change of law." The touchstone of the present suit lies in the Question No.2, the answer of which had been given by the Honourable Supreme Court in the above‑Referred judgment of Sardar Ali and another in paragraph 63 of page 344, which reads:- "But if a pre‑emption decree has, in the meanwhile been passed in his favour before the 31st July, 1986, this would create a right in his favour as it was envisaged by the Constitutional provisions. " In case of Mst. Aziz Begum and others v. Federation of Pakistan and others PLD 1990 SC 899 the relevant discussion by the Honourable Supreme Court regarding the proposition in hand is at page. 912 and it has been held:‑‑ "In fact, this matter has been placed beyond the pale of controversy by the order of the Shariat Appellate Bench itself as in the said order it has been specifically stated that sections 15 and 30 of the Punjab Pre‑emption Act, 1913 having ceased to have legal effect from 31‑7‑1986 in their entirety no suit, therefore, can be continued on the basis of the said provisions after the said date except those pre‑emption suits wherein decrees have been passed before 31-7-1986. In Bahadur Khan v. Muhammad Yousaf and others 1992 SCMR 2117 cited by the learned counsel for the petitioner, the controversy on or before passing of the decree in pre‑emption suit, as held by the Honourable Supreme Court in PLD 1986 SC 360 and PLD 1988 SC 287, was not involved because in that case the decree was passed on 18‑7‑1985, which was ex parte and the same was set aside, therefore, the Honourable Supreme Court accepted the appeal and remanded the case to the trial Court. In the case of Muhammad Latif v. Shams‑ud‑Din and others 2000 CLC 340, it has been held:- "Once a decree was passed prior to crucial date of 31‑7‑1986 in favour of pre‑emptor such case would be dealt with under Punjab Pre‑emption Act, 1913. " In case of Said Ameer Khan v. Mst. Shahzadi Khatoon and others 1993 SCMR 2050 the Honourable Supreme Court held:‑‑ "Where proceedings were pending without culmination into decree before 31‑7‑1987 in favour of plaintiff, no fresh decree could be passed subsequently, because Punjab Pre‑emption Act, 1913 under provisions of which suit had been filed had ceased to have effect or that date (of decree)." In Syed Hassan Mehmood v. Bashir Ahmad and 6 others 1994 SCMR 1624 it was held:- "Decree obtained before 31‑7‑1986 could be defended under the old law viz. Punjab Pre‑emption Act, 1913 and if no decree, was obtained before the target date, proceedings could not be defended on the ground that' they were initiated under the old law." In Ch. Bashir Ahmad v. Ghulam Rasool through Legal Heirs and others `PLD 1994 Lah. 13 his Lordship Mian Allah Nawaz, as he then was, held that:‑‑ "Judgment of Shariat Appellate Bench of Supreme Court in Said Kamal's case PLD 1986 SC 360 effective from 31st July, 1986 or 1st August, 1986. Pre‑emption suit was filed by plaintiff under Punjab Pre‑emption Act, 1913 on 10‑12‑1974 which was partly decreed on 31‑7‑1986 viz. the target date on which Punjab Pre-emption Act, 1913 had become wholly unworkable in terms of judgment of Supreme Court PLD 1980 SC 865, and thus, stood erased from the Statute Book. Trial Court, therefore, had no jurisdiction to decree plaintiff's suit for pre‑emption on 31‑7‑1986 for judgment of Supreme Court in Said Kamal's case had become effective from 31st July, 1986." By following the above‑stated dictums of the Honourable Supreme Court and the High Court, I am of the view that the instant revision petition must fail because from perusal of the record and the report of the learned District and Sessions Judge, Sargodha, dated 25‑2‑1999 it has been clinched that the judgment and decree was passed on 31‑7‑1986 the date when the judgment of Federal Shariat Appellate Bench of the Supreme Court in Said Kamal's case PLD 1986 SC 360 effective from 31st July, 1986 and the Punjab Pre‑emption Act, 1913 had become wholly unworkable in terms of the above judgment of the Supreme Court of Pakistan and thus, was not on the Statute Book. Therefore, the learned Civil Judge had no jurisdiction to decree the plaintiff's suit for pre‑emption on 31‑7‑1986. Consequently, this revision petition is dismissed with costs. Q.M.H./M.A.K./B‑40/L Revision dismissed.