2004 PLP 1338 (SCMR)

MIAN MUHAMMAD AJMAL, J.‑‑‑This petition for leave to appeal calls in. question the validity of the judgment of the Lahore High Court, Lahore, dated 4‑10‑2001, whereby Civil Revision No. 930 of 1993 of the respondent was allowed, the operative paragraph wherefrom is reproduced hereunder:‑‑‑ "At the outset learned counsel for the petitioner has cited the case titled Bashir Ahmad v. A.C. Lahore' and others 1989 SCMR 276 and the case titled Government of N.‑W.F.P. through Secretary Law v. Malik Said Kamal Shah PLD 1986 SC 360 to contend that no decree in the circumstances of this case, could have been passed after 31‑7‑1986. This contention of learned counsel is fully supported by the case‑law cited by him. This revision petition is allowed in the light of law enunciated by the Honourable Supreme Court in the above referred precedents. The judgments and decrees of both the Courts below are set aside and the suit of the respondent/plaintiff is dismissed."

2. Brief history of the case is that on 16‑1‑1982 Muhammad Rafique father of the petitioners/plaintiffs sold land measuring 106 Kanals, 11 Marlas situated in Mauza Qadirabad, Tehsil Pasrur, District Sialkot to the respondent through a registered sale‑deed for consideration of Rs.2,00,

000. The petitioners pre‑empted the said sale on the grounds that they were sons of the vendor and were co‑owners in the Khata. They also claimed that the actual sale price was Rs.84,000 and Rs.2,00,000 was fictitiously shown. The respondent contested the suit for the petitioners and claimed that the land was actually sold for Rs.2,00,000 and also claimed Rs.17,000 as registration expenses. On divergent pleadings of the parties, the trial Court framed issues recorded evidence of the parties and after hearing their learned counsel decreed the suit vide its judgment, dated 8‑9‑1987 subject to payment of Rs.2,15,000 by holding that the petitioners have superior right of pre‑emption.

3. The petitioners challenged the validity of the said judgment only for reduction of the amount of sale price and the registration expenses. The respondent' though did not file any appeal against the judgment, however, he filed cross‑objections under Order 41, rule 22, C.P.C. and the learned Additional District Judge, Sialkot relying upon the rule laid down in Government of N.‑W.F.P. v. Said Kamal Shah PLD 1986 SC 360, held that as the decree in favour of the petitioners was passed after 31‑7‑1986, therefore, it was not sustainable in law and consequently he vide his judgment, dated 17‑4‑1989 dismissed the appeal and in exercise of his powers under Order 41, rule 33, C.P.C. set aside the judgment and decree of the trial Court and dismissed the suit filed by the petitioners. This judgment was set aside by the learned High Court in Civil Revision No. 2191 of 1989 and the case was remanded to the learned Additional District Judge for decision afresh of the appeal in accordance with law. After remand, the Additional District Judge, Sialkot accepted the appeal of the petitioner, modified the decree of the trial Court by reducing the amount from Rs.2,15,000 to Rs.1,22,000 vide his judgment, dated 31‑5‑1993. The respondent challenged the said judgment and decree before the Lahore High Court, Lahore through Civil Revision No. 930 of 1993 which has been accepted as stated in para. 1 above.

4. Learned counsel for the petitioners contended that the learned High Court has erred in dismissing the pre‑emption suit of the petitioners on the ground that as no decree in their favour was passed prior to 31‑7‑1986, thereafter, no decree could be passed in their suit thereafter.

5. We have heard the learned counsel for the parties and have gone through the record of the case. In case of Babar Shehzad v. Said Akbar 1999 SCMR 2518, this Court on comparative examination of section 34(2) of the Punjab Pre‑emption Act, 1991 and section 35(2) of the N.‑W.F.P. Pre‑emption Act, 1987 and the law laid down by this Court in cases of Government of N.‑W.F.P. v. Said Kamal Shah PLD 1986 SC 360, Sardar Ali v. Muhammad Ali PLD 1988 SC 287, Muhammad Shoaib v. Member (Revenue) PLD 1988 SC 355, Ghulam Qadir v. Nawab Din PLD 1988 SC 701, Aiwaz Khan v. Allah Bukhsh PLD 1988 SC 730, Ahmed v. Abdul Aziz PLD 1989 SC 771, Sultan v. Habib Ahmad PLD 1990 SC 897, Aziz Begum v. Federation of Pakistan PLD 1990 SC 899, Muhammad Yasin v. Khan Muhammad PLD 1990 SC 1060, Muhammad Ismail v. Ghulam Haider 1991 SCMR 1443, Rozi Khan v. Karim Shah 1992 SCMR 445, Zafar Ullah Khan v. Muhammad Khan 1993 SCMR 696, Asghar Abbas v. Muhammad Amin 1993 SCMR 2022, Said Amir Khan v. Shahzadi Khatoon 1993 SCMR 2050, Khushal Khan v. Rao Nawaz 1994 SCMR 814; Hasan Mahmood v. Bashir Ahmad 1994 SCMR 1624, Muhammad Salam v. Wali Muhammad 1997 SCMR 108 and Muhammad Sarwar v. Muhammad Hussain 1998 SCMR 1938, concluded that the scope and consequence of both the provisions are same which are meant to protect the judgments and decrees passed in cases and appeals before the target date of 31‑7‑1986 and if a decree in favour of the pre‑emptor has not been passed before the target date, pending proceedings could not continue in accordance with the A provisions of the repealed Act.

6. In view of the above dicta of this Court, the impugned judgment of the High Court does not warrant for interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, this petition is dismissed and leave refused. M.H./Z-120/S Leave refused.