P L D 2004 Supreme Court 15 (PLP)

MIAN MUHAMMAD AJMAL, J.

The petitioner seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 16-7-2001 whereby Civil Revision No.239 of 1992, filed by him was dismissed.

2. Brief facts are that Sibt-e-Nabi alongwith his two brothers and two sisters sold their land measuring 43 Kanals, 13 Marlas to Hashim Khan defendant/respondent No.1 for sale consideration, of Rs.3,00,000 vide registered sale deed dated 15-10-1978. Sh. Hukmat plaintiff/petitioner pre-empted the said sale through a suit for possession through pre-emption. He alleged that he being a co-sharer in the Khata and owner in the estate had a preferential right of pre-emption qua the vendee who was a stranger and later on the ground of contiguity was also added on 16-1-1990 with the permission of the trial Court. He further alleged that the suit land was actually sold for Rs.87,300 but Rs.3,00,000 was shown as sale price to defeat his pre-emption right.

3. Sh. Dawood and Sh. Subhan, respondents Nos.2 and 3 also instituted a suit for possession through pre-emption on the ground of tenancy before the Collector which was decreed to the extent of 9 Kanals, 7 Marlas and Mutation No.251 dated 9-2-1983 was sanctioned to that affect. Due to institution of the said suit for possession through pre-emption regarding the same land, they were also impleaded in pre-emption suit.

4. Regarding the same land, a declaratory suit titled "Sh. Dawood v. Federation of Pakistan" was also pending before the same Court, as such, the plaintiff/petitioner moved an application on 20-9-1981 to stay the proceedings of his pre-emption suit till the decision of the title suit, as a consequence whereof the proceedings in the suit in, hand were adjourned sine die vide order dated 22-3-1982.

5. The aforementioned title suit was dismissed but on appeal the case was remanded against which appeal was filed by the allottees of the land which was pending before the High Court when the plaintiff/petitioner filed an application for revival of his suit, for pre emption on 18-12-1988. The petitioner, also added the ground of contiguity with the permission of the trial Court vide order dated 16-1-1990. He also moved an application on 12-2-1990 for amendment of the plaint for deleting the names of respondents Nos. 2 and 3 from the array of defendants and also for correction of the description of the property due to the decree passed in the suit of respondents Nos. 2 and 3 to the extent of 9 Kanals, 7 Marlas.

6. The trial Court dismissed the suit of the petitioner on 17-7-1990 relying upon the rule laid down in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 on the ground that as no decree in the present suit was passed prior to 31-7-1986, therefore, it could not proceed. Feeling aggrieved by the said judgment and decree, the petitioner filed an appeal before the District Court which was dismissed by the Additional District Judge, Attock vide his judgment dated 4-3-1992. In the meanwhile, an application under section 36 of the Punjab Pre-emption Ordinance (XVIII of 1990) was filed praying that the suit may be decided afresh as 4 was saved under the provisions of the said section. On promulgation of the Punjab Pre-emption Act, 1991 similar provisions regarding saving of the suits, were enacted in section 35 thereof. The said application was dismissed on 19-2-1991, revision there against was also dismissed on 29-4-1991.

7. Feeling aggrieved by the judgment of the Appellate Court dated 4-3-1992, the petitioner filed a petition under section 115, C.P.C. before the Lahore High Court,. Rawalpindi Bench, Rawalpindi which has also been dismissed by upholding the concurrent findings of the lower Courts, operative paragraphs wherefrom are as under:-- "The Honourable Supreme Court in the case of "Muhammad Shabbir Ahmad Khan v. Government of Punjab Province" PLD 1994 SC 1 held that section 35(2) of the Punjab Pre-emption Act, 1991 is repugnant to Injunctions of Islam insofar as it exempts the cases pending or instituted during the period from 1st of August, 1986 to 28th of March, 1990 from the requirements of Talb-i-Muwathibat and extends the right of limitation for them up to one year. With these observations the appeal of the Government of Punjab in relation to section 35(2) was, dismissed. Admittedly no pre-emption decree was passed in favour of the plaintiff/petitioner before 1-8-1986. Punjab Pre-emption Ordinance (XVIII) of 1990 was promulgated on 27-8-1990 but it was deemed to have taken effect on and from 29-3-1990. Under section 36 of the Ordinance, the saving clause was enacted for the suits instituted or pending during the period from 1st of August 1986 to 28th March, 1990. Section 36(2) of this Ordinance was amended by Punjab Pre-emption (Amendment) Ordinance (XXI of 1990) and the period of 240 days therein was substituted by one, year. After the expiry of the Ordinance XVIII of 1990, Punjab Pre-emption Ordinance (XXVII) of 1990 was promulgated on 26-11-1990 keeping intact section 36 of the earlier Ordinance (XVIII) of 1990. The Punjab Pre-emption Act (IX of 1991) came into force on 6th of April, 1991 wherein sections 34 and 35 were enacted. The effect of section 36 of Punjab Pre-emption Ordinance (XVIII of 1990) and section 34(2) of Punjab Pre-emption Act (IX of 1991) has been considered by the Honourable Supreme Court in the case of Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445 and Ghulam Hassan and others v. Mushtaq Ahmad and others PLD 1994 SC

870. It was held in the case of Rozi Khan that the `Judgments and decrees passed by the Courts mean those judgments and decrees, wherein the suit of the pre emptor has been decreed by the Courts rendering it". Similarly in the case of Ghulam Hassan etc. (supra) that mere demand in the plaint to accept superior rights of pre-emption is not sufficient compliance for restoration as contemplated under section 36 of Ordinance (XVIII of 1990). It was observed that the requirement of Talbs being a sine qua non for the enforcement of the right of pre-emption recognized by Islamic Law, its non-compliance had the effect of extinguishing the pre-emption right of all such pre emptors. Admittedly there is no mention of Talb-i-Muwathibat in the plaint as such the suit cannot proceed. The plaintiffs having no decree in their favour before the target date cannot succeed under section 36 of the said Ordinance. For the reasons stated above, this revision petition has no merit and is dismissed with no order as to costs."

8. We have heard the learned counsel for the parties and have gone through the record of the case. The sole point urged by the learned counsel for the petitioner was that the learned Courts below failed to properly interpret section 36 of the Punjab Pre-emption Ordinance (XVIII of 1990) (hereinafter to be called the Ordinance) and enacted as section 35 in the Punjab Pre-emption Act, 1991 (hereinafter to be called the Act) which provides revival of the dismissed suits of pre-emption, instituted or pending between 1-8-1986 to 28-3-1990 and wherein Talb-1-Ishhad in presence of two truthful witnesses had been made. For convenience sake section 36 of the Ordinance and section 35 of the Act ibid is reproduced below:-- "Saving.--(1) Notwithstanding anything in any other law-for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending during the period from 1st August, 1986 and 28th March, 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of the commencement of this Ordinance, shall subject to subsection' (2), be decided afresh according to the provisions thereof. (2) Notwithstanding anything in sections 13 and 31, in respect of the suit mentioned in subsection (1), the period of limitation shall be two hundred and forty days and it shall be sufficient if the pre emptor establishes that he had made `Talb-I-Ishhad' in the presence of two truthful witnesses."

9. Section 36 of the Ordinance and section 35 as enacted in the Act came into consideration before this Court in Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and Ghulam Hussian v. Mushtaq Ahmad PLD 1994 SC

870. In the former case, the Shariat Appellate Bench of this Court declared section 35(2) of the Act, insofar as it exempts the cases pending or instituted during the period from 1-8-1986 to 28-3-1990 from the requirements of Talb-i-Muwathibat and extension of period of limitation to one year, to be repugnant to the injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.). The decision was to take effect from 31-12-1993 whereby the provisions of the Punjab Pre-emption Act, 1991, declared to be repugnant to the Injunctions of Islam, would cease to take effect to the extent of their repugnancy. In the latter case i.e. Ghulam Hussain v. Mushtaq Ahmad PLD 1994 SC 870 this Court held that since no decree was passed in favour of the pre-emptor on or before 31-7-1986 which was the target date set in the case of Said Kamal Shah's case PLD 1986 SC 360 and that Talb-1-Ishhad and statement rout `Zaroorat' or avoidance of `.Zarar' were conspicuously absent in the pleadings, therefore, such suits could not be revived under the aforesaid sections of law. It was further held that requirement of Talbs being sine qua non for the enforcement of the right of pre-emption recognized by the Muslim law, its non-compliance had the effect of extinguishing the pre-emptive right of all such pre-emptors.

10. In yet another case titled Muhammad Anwar v. Hafiz Muhammad Akbar Chughtai reported in 1996 SCMR 749, the suit was filed in 1985 in which no decree was passed on or before 31-7-1986, it was held by this Court that since no judgment or decree in the suit was passed before the target date i.e. 1-8-1986, therefore, the case would not be saved by the saving clause of section 34(2) of the Act and the trial Court could not allow the amendment in the plaint of such suit to add the factum of Talbs.

11. The present suit was filed on 14-10-1979 which was adjourned sine die on 22-3-1982 on the petitioner's own application and was revived on 18-12-1988 i.e. after the target date. The suit was dismissed on 17-7-1990 on the basis of the rule laid down in Said Kamal Shah's case and the judgment was maintained up to the High Court. Since no decree had been passed in the present suit on or before 31-7-1986, therefore, no decree could be passed thereafter in the suit filed under the old law/repealed Act where right of pre-emption had not been claimed under the provisions of Islamic Law, hence, the provisions of section 36 of the Ordinance and that of section 35 of the Act were not attracted.

12. Furthermore, after the dismissal of the suit an application for its revival under section 36 of the Ordinance was made, which was dismissed on 19-2-1991 and revision against the said order was also dismissed by the District' Judge, 'Attack on 29-4-1991 whereafter no further remedy was sought before the higher Courts, therefore, the order passed in revision attained finality. We find no merit in this petition, consequently it is dismissed and it leave refused. S.A.K./H-89/S Leave refused.