1997 PLP 108 (SCMR)

Dr. A. Basit, Advocate Supreme Court with Ch. Mehdi Khan Mehtab Advocate‑on‑Record for Petitioners. Hamid Aslam Qureshi, Advocate‑on‑Record for Respondents. Date of hearing: 9th April, 1996 ZIA MAHMOOD MIRZA, J.‑‑‑Petitioners seek leave to appeal against the judgment of a learned Single Judge of Lahore High Court, dated 3‑12‑1995 passed in R.S.A. No.74/1984 and the order dated 10‑1‑1996 dismissing the petitioner s review application (R. A. No. l/1996).

2. Facts relevant for the disposal of this petition, briefly stated, are that the petitioners had purchased the land measuring 104 Kanals through a registered sale‑deed on 16‑7‑1969. Madari Khan, the predecessor‑in‑interest of the respondents herein filed a suit to pre‑empt the said sale claiming superior right of pre‑emption on the ground that he was an owner in the estate while the vendees/defendants were outsiders. The suit was decreed by the trial Court on 28‑6‑1980 but the vendees succeeded in appeal which was accepted by a learned Additional District Judge who found the issue of superior pre‑emptive right against the plaintiffs and vide judgment dated 1‑3‑1984 set aside the judgment and decree of the trial Court and dismissed the respondents' suit. The respondents filed a second appeal (R.S.A. No.74 of 1984) in the High Court which was accepted by a learned Single judge vide judgment dated 3‑12‑1995 with the result that the judgment of the lower Appellate Court was set aside and the decree of the trial Court dated 28‑6‑1980 restored.

3. Petitioners sought review from the High Court of its judgment dated 3‑12‑1995 mainly on the ground that the suit having been dismissed on 1‑3‑1984 and there being no decree in favour of the plaintiffs before 31‑7‑1986, the appeal of the respondents could not have been decided in accordance with the provisions of the Punjab Pre‑emption Act, 1913. His precise contention was that cumulative effect of sections 34 and 35 of Punjab Pre‑emption Act, 1991 was not examined in the judgment sought to be reviewed. This contention was not accepted by the learned Judge who held that since the suit was once decreed on 28‑6‑1980, the dictum of the Supreme Court laid down in the two judgments reported as Government of N.‑W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) and Sardar Ali etc. v. Muhammad Ali etc. (PLD 1988 SC 287) was clearly applicable to the facts and circumstances of this case. The case as such was governed by old law and "sections 34 and 35 of the Punjab Pre‑emption Act. 1991 are not applicable to the facts and circumstances of this case". The review application of the petitioners was accordingly dismissed in limine vide order dated 10‑1‑1996.

4. Learned counsel appearing in support of this petition sought to contend with reference to the provisions of sections 34 and 35 of Punjab Pre‑emption Act IX of 1991 that the suit filed by the respondents was pending during the crucial period specified in section 35 i.e. between the first day of August, 1986 and the 28th March, 1990 but since the right of pre‑emption claimed therein was not available under the Pre‑emption Act of 1991, their suit was not saved under the saving clause contained in section

35. It was further contended by the learned counsel that in the presence of specific saving provisions made in section 35, reliance could not be placed on section 34 which even otherwise was not attracted as it made only be procedural provisions of the repealed Act applicable to the cases and appeals filed there under.

5. We have considered the submissions of the learned counsel in the light of the provisions of sections 34 and 35 of Punjab Pre‑emption Act IX of 1991 and agree with him that section 35 is not applicable to the instant case for the simple reason that the right of pre‑emption claimed in the respondents' suit is not available under the new law. It may partinently be observed that section 35 rendered ineffective the judgments, decrees and orders dismissing the suits instituted or pending between the first day of August, 1986 and the 28th March, 1990 (both days inclusive) if the right of pre‑emption claimed in such suits was also available under the new enactment and it was further provided that such suits, on an application made by the aggrieved plaintiff within sixty days of coming into force of the new Act, shall be decided afresh according to the provisions thereof. In the instant case, the suit, as stated above, was decreed by the trial Court on 28‑6‑1980 but on appeal filed by the petitioners/vendees, the decree of the trial Court was set aside by the first Appellate Court on 1‑3‑1984 where after, respondents filed a second appeal in the High Court. During the pendency of the said appeal, Punjab Pre‑emption Act IX of 1991 came into force which by its section 34(1) repealed the Punjab Pre‑emption Act, 1913 and further provided in subsection (2) of section 34 that "in the case and appeals filed under the Punjab Pre‑emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof". As noted above, the judgments and decree's in the present case including the decree in favour of the plaintiffs had been passed long before the target date mentioned in section 34(2). That being so, the case was quite clearly covered by subsection (2) of section 34 and, therefore, the respondents' appeal was rightly decided by the High Court in accordance with the provisions of the repealed Act viz. the Punjab Pre‑emption Act, 1913.

6. Towards the conclusion of his arguments, the learned counsel pointed out that in almost identical cases, this Court has already granted leave to appeal. He produced photo copies of two such orders, one passed in a Review Petition C.R.P. 136 of 1993 (in C.P. 345/93) and the other in C.P. 996‑L/1993. We have gone through both these orders and find that they proceeded on distinguishable facts. In both the cases, the pre‑emption suits were decreed by the trial Court in December, 1987 and the appeals filed by the vendees were accepted by the first Appellate Court. The plaintiffs then moved applications under section 35 of Punjab Pre‑emption Act, 1991 for revival of their suits but those applications were dismissed. Leave was accordingly granted to examine, inter alia, whether section 35 of Act of 1991 could be pressed into service in those cases.

7. Upshot of the above discussion is that we find no merits in this petition which is accordingly dismissed and the leave sought is refused. A.A./M‑3297/S Petition dismissed.