P L D 2002 Supreme Court 74 (PLP)

ABDUR REHMAN KHAN, J.-‑‑In this appeal, with leave of the Court the judgment dated 2‑4‑1995, of a leaned Judge in the High Court has been impugned as by that order of the learned trial Court dated 7‑4‑1994, dismissing the application of the defendant vendee/ respondents under Order Vii, rule

11. C P C. was set aside and consequently the application of the respondents under the said provision of law was allowed and as a result the plaint of the appellants‑pre‑emptors in a pre‑eruption suit, was rejected.

2. Leave to appeal was granted in these terms: "View taken by the Lahore High Court is that the suit should have been filed within four inoriths, it not earlier, and as this was not done, it was time‑barred: Learned counsel submits that the authorities relied upon by the learned High Court do nut support its view He also pleads that the learned High Court has erred in holding that Talb‑i Muwathibat has not been made. "

3. The appellants filed suit for possession through pre‑emption in respect of the suit land on the basis of superior pre‑emptive rights being owners in the estate where the land is situated, owners of adjacent land and also participators in the rights of using a common passage. Respondents/defendants resisted the suit and in the written statement pleaded that the suit property is exempt from pre‑emption as it lies in the urban area and also denied superior right of pre‑emption and compliance of requirement of Talabs. However. during the proceedings in the suit the defendants submitted application under Order VII, rule 11, C.P.C. for rejecting the plaint on the ground that at the time of filing the suit there was no law of pre‑emption in the field. The learned trial Court by order dated 7‑1‑1992, dismissed this application. It is admitted position that revision petition moved against this order was withdrawn and so it obtained finality. However, second application under Order V11, rule 11, C.P.C. was submitted for rejection of the plaint on the ground that the suit was time barred. This application was dismissed by the learned trial Court on 7‑4‑1994, but the High Court in revision through the impugned judgment set aside the order and accepting the application rejected the plaint.

4. Learned counsel for the appellants argued that after rejection of the first application, the second application for the same relief was not competent, therefore, the High Court erred in law in accepting the second application without commenting on the maintainability of the said application. The learned counsel representing the respondents at this stage stood up and submitted that he concedes the above legal position and would not oppose the appeal on this count. He, however, argued that the property in suit is situated in Municipal limits of Sialkot and as such is not covered by the definition of immovable property as given in section 2 (a) of the Punjab Pre‑emption Act, 1991: He explained that on the date the sale deed was executed no suit of pre‑emption could be filed as the said provision of law was effective till 31‑12‑1993, i.e. the date rule laid down in the judgment reported as "Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore" (PLD 1994 Lah. 1), was made operative. In this context he referred to various decided cases to support his contention. The learned counsel for the appellants although admitted that the property in suit lies in urban area but argued that this objection is misconceived as at the crucial time there was no statutory law governing the pre‑emption and as such Islamic law regulated the present case and the property could not be exempt from pre‑emption.

5. We would not discuss and dilate on the merits of the above submission as neither in the first Court order nor in the High Court judgment these points have been decided. The trial Court and the High Court have decided the case on entirely different points. We have decided to remand the case to the trial Court, therefore, any expression of opinion at this stage is not proper.

6. Consequently, this appeal is allowed, the impugned judgment of the High Court is set aside while that of the trial Court is restored. The case is sent to the trial Court for trial on the issues arising from the pleadings of the parties. It is directed that the case may be finally decided within six months C from the receipt of this order. Any observation made in any of the order in the proceedings so far conducted, would not affect merits of the case at the trial which should be decided on the basis of the evidence to be brought on record. Parties should bear their own costs. Q.M.H./M.A.K./M‑301/S ????????????????????????????????????????????????????????????????? Case remanded.