1998 PLP 1800 (CLC)

After remand of the case the file was reconstructed. This plaintiff‑petitioner filed fresh plaint in the trial Court on 9‑2‑1984. Defendant‑respondents 1 to 3 submitted their written statement. Issues were framed. Evidence of the parties was recorded. After hearing the learned counsel for the parties, the suit of the plaintiff‑petitioner was dismissed by the learned Civil Judge, 1st Class, Swabi vide his judgment and decree, dated 19‑9‑1988. The plaintiff‑petitioner filed an appeal which was also dismissed by the learned Additional District Judge‑I, Swabi vide his judgment and decree, dated 17‑9‑1989, which is impugned herein.

3. During the pendency of this revision petition, the defendant‑respondent has sold back the suit property to Saifur Khan vendor vide Mutation No.49, dated 26‑3‑1994. Plaintiff‑petitioner submitted an application (Civil Miscellaneous No. 608 of 1994) for impleading the said Saifur Khan as respondent which was accepted on 30‑10‑1994 and the petitioner was directed to file amended revision petition which he filed on 3‑5‑1997.

4. I have heard the learned counsel for the parties and have perused the record of the case with their assistance.

5. In the instant case the pre‑emption suit was filed under the repealed N.‑W.F.P. Pre‑emption Act, 1950, and was pending at the commencement of N.‑W.F.P. Pre‑emption Act, 1987 wherein no 'Talabs' had been made. Though the suit was initially decreed on 17‑9‑1973 but on appeal the suit was dismissed and in revision the case was remanded back to Civil Judge for trial de novo. Meaning thereby that the suit was to be tried afresh and on the enforcement of N.‑W.F.P. Pre‑emption Act, 1987, the suit was pending in the trial Court which could not be decreed after 31‑7‑1986 unless demands of pre‑emption or Talabs had been made in it. Under subsection (3) of section 35 of the N.‑W.F.P. pre emption Act, 1987, if the suit has not been instituted in accordance with the provisions of the Act (ibid), and was pending at the commencement of the Act, the same shall lapse and the suit of the pre‑emption shall stand dismissed and the pending appeal shall also lapse. Section 35 of the Act ibid is reproduced hereunder:‑‑‑ "

35. Reveal.‑‑‑ (1) The North‑West Frontier Province Pre‑emption Act, 1950 (N.‑W.F.P. Act XIV of 1950), is hereby repealed. (2) In the cases and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre‑emptors shall stand dismissed, except those in which right of pre‑emption is claimed under the provisions of this Act." The aforequoted section clearly enunciates that the suit and appeals filed under the repealed N.‑W.F.P. Pre‑emption Act, 1950 in which final judgment/ decree had been passed, further proceedings relating to such cases and appeals were to be governed under the repealed Act and continued in accordance thereof, and where no such judgment/decree in the suits and appeals have been passed and were pending at the commencement of the Act, they would lapse and suits would stand dismissed except those wherein right of pre‑eruption has been claimed under the later Act. This section came under consideration in case of Rozi Khan reported in 1992 SCMR 445, wherein the Apex Court of the country observed as follows: "In the light of the foregoing, the effect of the provisions of section of the new Islamic Law of Pre‑emption, in our opinion, is that if at the time of the enforcement of the Islamic Law of Pre‑emption (i.e. 1‑8 1986 when the principles of the Islamic Common Law became applicable in the absence of any statutory law or after 28‑4‑1987 when Act (X of 1987) was promulgated) a final decree in the sense explained above (namely a decree in favour of the plaintiff/pre‑emptor decreeing the suit for pre‑emption) had already been passed and an appeal against it was pending (which is a further proceeding relating to the case in which the decree was gassed), the said further proceedings shall be governed and decided under the provisions of the old Act (N.‑W.F.P. Pre‑emption Act, 1950) and the provisions of Act (X of 1987) would not be attracted. Similarly, if a final judgment (decreeing the suit of the plaintiff/pre‑emptor) had been passed before the aforesaid dates and the said judgment was being challenged before the revisional Court or the High Court in its writ jurisdiction such proceedings too shall be governed by and decided under the provisions of the old Pre‑emption Law enacted in the 1950 Act. The submission that only such a decree can be considered to be a final where all the legal remedies provided for its challenge and in fact resorted to, have been exhausted and is not confined to the judgment and decree of the Court rendering it or in other words a final judgment implies the judgment or the decree of the highest forum to which the case is taken cannot be accepted. Indeed such an interpretation would defeat the provisions of subsection (2) of section 35 of the 1987 Act. This subsection provides that 'further proceedings if any relating to such cases and appeals shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. Now, if the highest forum has finally decided a case nothing would remain to be done thereafter except, perhaps, the attestation of mutations and the execution of the decree. However, for such proceedings distinct procedure has been laid down in other statutes such as the Land Revenue Act and Civil Procedure Code. This brings us to the second question namely who are the persons who can exercise the right of pre‑emption under the provisions of newly promulgated Act (X of 1987). . We observe that in subsection (3) of section 35 it is provided that other cases and appeals not covered under subsection (2) and instituted under the Act of 1950 which were pending before a Court before the commencement of the Act (X of 1987) shall lapse and suits of pre emptors shall stand dismissed, except those in which the right of pre emption is claimed under the provisions of Act (X of 1987)." 'According to subsection (3) of section 35 suits and appeals which were instituted under the Act of 1950 and which immediately before the commencement of the Act of 1987 were pending before a Court will lapse in which the right of pre‑emption is not claimed under the provisions of the new Act of 1987. Thus, those suits in which the right of pre‑emption is claimed under the provisions of the Act of 1987 will not lapse. Now the question is whether under the subsection in which the pending suits are saved are the suits in which the right of pre emption is claimed under the provisions of section 6 but it is the suits of those persons only who are not only vested with the right of pre emptor under section 6 but have also made the Demand of Pre‑emption (Talabs) as required by section 13? In order to determine the true intent of the above provisions it should be noted that in the judgment or this Court in the case of Said Kamal Shah PLD 1986 SC 360 it was also observed that ' if possible a consolidated ‑law of pre‑emption be enacted accordingly till 31‑7‑1986'. In pursuance of this judgment, the Government of N.‑W.F.P. framed a new law of pre‑emptor (though not by 31‑7‑1986 but a few months thereafter) entitled the N.‑W.F.P. Pre‑emption Act, 1987 which was passed by the Provincial Assembly on 21‑4‑1987 and after the assent of the Governor published in the Official Gazette on 28‑4‑1987. Thus, the Act of 1987 was adopted to give effect to the Islamic of pre‑emption, as explained by this Court in the case of Said Kamal. Herein this Court on the question of demand of pre‑emption (Talabs) observed that the requirement of Talab being a sine qua non for the enforcement of the right of pre‑emption recognised by the Muslim Law, its non‑compliance had the effect of extinguishing the pre‑emptive right of all such pre emptors. Accordingly, the suits filed by them in which the Talab was not made and a decree has not yet been passed in their favour (i.e. not passed by 31‑7‑1986) would fail." Admittedly, in this case no decree had been passed till 31‑7‑1986 in favour of the pre‑emptor, therefore, his suit was liable to dismissal under subsection (3) of section 35 of the Act (ibid). The petitioner's suit was dismissed on merit under the repealed Act by both the Courts below but the suit on the commencement of the new Act had to be dismissed in view of the aforesaid provision of law. Consequently, this revision petition being devoid of any merit is dismissed, with no order as to costs. Petition dismissed