1998 PLP 464 (SCMR)
Mehr NOMAN KHAN‑‑‑Petitioner Versus GHULAM ABBAS and 3 others‑‑‑Respondents
| Citation | 1998 PLP 464 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Saad Saood Jan and Irshad Hasan Khan, JJ |
| Parties | Mehr NOMAN KHAN‑‑‑Petitioner Versus GHULAM ABBAS and 3 others‑‑‑Respondents |
| Primary Law | Pre‑emption‑‑‑ |
Q1: What are the key laws and sections cited in 1998 PLP 464 (SCMR)?
This judgment primarily cites: Pre‑emption‑‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1998 PLP 464 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Saad Saood Jan and Irshad Hasan Khan, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1998 PLP 464 (SCMR) (Mehr NOMAN KHAN‑‑‑Petitioner Versus GHULAM ABBAS and 3 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- S.M. Tayyab, Senior Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
- Zahid Hussain Khan, Advocate Supreme Court and Rana M.A. Qadri, Advocate‑on‑Record (absent) for Respondents.
- Date of hearing: 9th June, 1996.
- S.M. Tayyab, Senior Advocate Supreme Court instructed by Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
- Zahid Hussain Khan, Advocate Supreme Court and Rana M.A. Qadri, Advocate-on-Record (absent) for Respondents.
Headnotes / Summary
(On appeal from the judgment dated 6‑11‑1995 passed by the Lahore High Court in Civil Revision No.527/D of 1992). ‑‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑‑Pre‑emption‑‑‑Plaintiff's suit filed on 3‑11‑1988 was dismissed on the ground that there was no pre‑emptive right available to plaintiff and even if it was available plaintiff had not fulfilled requirements of Islamic Law‑‑‑Validity‑‑‑Plaintiff's plea was that High Court was wrong in holding that there was no law of pre‑emption during relevant period, while Supreme Court's view as enunciated in PLD 1994 SC 1 was that in absence of statutory law of pre‑emption, Islamic Law would hold the field‑‑ Plaintiff's further plea was that Courts below had failed to consider that plaintiff not only pleaded all the "7'albs" in suit but also led evidence which was ignored by Courts below‑‑‑Leave to appeal was granted to consider the pleas raised. Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 rel.
Judgment & Decree
IRSHAD HASAN KHAN, J.
Leave to appeal has been sought under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment dated 6-i 1-1995, passed by the Lahore High Court in Civil Revision No. 527-D of 1992.
2. Petitioner filed suit for possession through pre-emption on 3-11-1988 against the respondents/vendees of the disputed land on the ground that he is a co-sharer and also Shafi Khaleet having preferential right to claim the land. In view of the pleadings of the parties relevant issues were framed and the parties led evidence. However, before the petitioner led evidence in affirmative and rebuttal, the respondents moved an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on the ground that from 1-8-1986 to 28-3-1990 there was no law of pre-emption in the field. The application was accepted by the trial Court vide order dated 17-11-1991 and the plaint was rejected. On appeal, the District Judge, Khushab maintained the order of the trial Court. Civil revision application filed by the petitioner also failed in the High Court.
3. The learned Judge in Chamber took the view that at the time of sale there was no pre-emptive right available to the petitioner/plaintiff and even if it was available he had not fulfilled the requirement of Talab etc., which was the basic requirement of Islamic Law.
4. Learned counsel for the petitioner contended that the learned Judge in Chamber was wrong in holding that there was no law of pre-emption during the relevant period, in that, this Court has held that in the absence of statutory law of pre-emption, Islamic Law will hold the field. Reference may be made to Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, I Lahore (PLD 1994 Supreme Court 1), in which the Shariat Bench of this Court held that "the removal of Zarar has been mentioned by the Jurists as the philosophy underlying the law of pre-emption and not as a pre-condition to the exercise of this right". Learned counsel for the petitioner next contended that the Courts below failed to consider that the petitioner not only pleaded all the Talabs i.e. Talab-e-Muwathibat, Talab-e-Ishhad and Talab-e-Khusumat in the suit but also led evidence which was ignored by the Courts below. Leave to appeal is granted to consider these contentions. A.A./N-466/5 Leave granted.