P L D 2013 Supreme Court 171 (PLP)

C.M.A. No.261 of 2011 MIAN SAQIB NISAR, J.

Through this application, applicant has prayed that the production of certified copies of judgments of the learned Additional District Judge dated 13-11-2001 and that of the Civil Judge dated 20-3-1999 be dispensed with as he has not been able to obtain the same so far.

2. Since the applicant has appended certified copy of the judgment of the learned High Court, in the peculiar facts of this case, this application is allowed and the production of certified copies of the afore-referred judgments is dispensed with. However, on the request of the learned counsel, we have taken up the appeal for hearing and direct the office to number the same, which is being disposed of today. CIVIL APPEAL NO.1432 OF 2010

3. The appellant is a pre-emptor, who has succeeded in his cause in the Trial Court when a decree was passed in his favour on 20-3-1999 and the appeal of the respondent failed on 13-11-2001, which decision when challenged before learned High Court by the respondent/defendant in revisional jurisdiction, the primary issue, which emerged for the resolution was, whether the appellant has made Talbs in accordance with law, especially when the particulars of Talb-e-Muwathibat were not pleaded in the plaint with the consequence that the suit was liable to be dismissed in the light of inter alia the pronouncement of this Court in the case reported as Mian Pir Muhammad and another v. Faqir. Muhammad through L.Rs. and others (PLD 2007 SC 302). The learned Judge in the High Court allowed the revision petition and dismissed the suit of the appellant by relying inter alia upon the judgment (supra).

4. It has been argued by the learned counsel for the appellant, that the decree in favour of the appellant was passed prior to the judgment supra and the appeal of the respondent also failed before that date, therefore according to the law in vogue at the relevant time the appellant was not required to specify the date; time and venue qua first talb in the plaint, thus learned High Court in its revisional jurisdiction was only supposed and confined to examine, if there was/is any error of jurisdiction or material irregularity committed by the Courts below in passing the two verdicts and could not travel beyond that. And in the above context the learned High Court could not transgress its revisional authority by relying upon the law laid down by this Court during the pendency of the revision before it. It is submitted that the law applicable to the matter shall be the one before Mian Pir Muhammad case (supra), which prescribed that there is no requirement for mentioning the said particulars in the plaint of a suit for preemption.

5. Heard. Being conscious of the dicta of this Court whereby while declaring a particular law as ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and a specific cut off date as to when the judgment would take effect and further providing for saving the decision/decree passed prior thereto, we are of the view that latest judgment/verdict of this Court not falling within the above category, which enunciates the principle of law, in respect of a specific/particular law by interpreting the same e.g. (preemption/rent/family) that such judgment shall be given fullest effect and should be strictly followed till the time the lis stands finally terminated/determined. Meaning thereby that it (lis) is not pending before any forum (not the apex Court); this should be irrespective when the case was instituted or the decision was passed by the first Court or subsequent courts. It is the final and conclusive judgment/opinion of the apex Court deciding a question of law, or based upon or enunciates a principle of law which shall have the binding effect and should be adhered to in letter and spirit, obviously if it otherwise qualify the test of precedence over the earlier view, under the known principles of interpretation and application of the "precedent case law". In our opinion, the instant case was/is squarely covered by Pir Muhammad case at the revisional stage and the revisional Court was duty bound to decide the matter as per thereto in terms of Article 189 of the Constitution. Besides, it has not been candidly controverted by the learned counsel when confronted by the Court during the course of hearing, that in the evidence the appellant was required to testify/establish/prove the said particulars, but on examination of the evidence, it reveals that those (particulars) are conspicuously missing. None of the witnesses produced by the appellant with regard to Talb-e-Muwathibat has deposed about the date, time and venue of making the Talb-e-Muwathibat. Therefore, on this ground alone, we are not persuaded to interfere in the impugned judgment. This appeal accordingly has no merit and is dismissed. MWA/D-3/S Appeal dismissed.