2003 PLP 771 (YLR)

6. N.‑W.F.P. Pre‑emption Act (Act X of 1987), was promulgated with effect from 28‑4‑1987. With the promulgation of Act X of 1987 the old Pre‑emption Act of 1950 stood repealed. Section 35 of the new Act deals with the effects of repeal of Pre‑emption Act of 1950 which is reproduced hereunder for convenience:‑‑ "35 Repeal.‑‑‑(1) The North‑West Frontier Province Pre‑emption Act, 1050 (N.-W.F.P. Act XIV of 1950), is hereby repealed.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."

7. Admittedly section 35 of the Act deals with the pending cases and appeal filed under the repealed law, however, it has drawn a distinction in cases in which decree has been passed before the enforcement of the new law, or for the purpose of the present controversy before 31‑7‑1986 and those cases which were pending before the trial Court on the said date .i.e. 31‑7‑1986 and in which decrees were hot yet passed. In the former cases further proceedings were to be taken under the repealed law while the latter cases are to lapse and suits of the pre‑emptors are to be dismissed except those in which right of pre‑emption is claimed under the provisions of this Act.

8. Interpretation of section 35 of N.‑W.F.P. Pre‑emption Act, 1987 was made by august Supreme Court of Pakistan in Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445) in which . it was held:‑‑ "While considering this question this Court observed 'this section envisages pendency of appeals and cases against the judgments and decrees which have become final And the question arose as to what is the true meaning of the word 'final'? After referring to the meaning assigned to the word 'final' and the meaning given to the expression 'final decision' in Black's Law Dictionary the conclusion reached was that the word 'final' in this section meant the 'judgment or, decision which terminates action in Court which renders it'. This word was understood in the same sense by this Court even in an earlier case (Rizvi v. Maqsood Ahmed PLD 1981 SC 612) and this Court had given a similar meaning to these words. It was said in that case: "An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open 'to challenge in appeal etc."

9. The words "judgment and decree passed by the Courts below have become final" employed in subsection (2) of section 39 of N.‑W.F.P. Pre‑emption Act, 1987, were also interpreted by this Court ,in Ali Bahadur and others v. Muhammad Sarwar and another (PLD 1993 Pesh. 157) it was held:‑‑ "' judgments and decrees passed by the Courts have become final' employed in subsection (2) of section 35 of the New Act have been held to mean "those judgments and decrees wherein the suit of the pre‑emptor ha, been decreed by the Courts rendering it". The word 'decree' was thus held to mean only the judgments and the decrees wherein the suit of the pre emptor has been decreed and the dismissal of the pre-emptor's suit has been altogether excluded."

10. In Ghulam Rasool and 2 others v. Faiz Bakhsh (1992 SCMR 1328) when the suit of the plaintiff had been decreed ex parte on 17‑7‑1982 and the said decree was set aside by Appellate Court on 17‑5-1983, the august Supreme Court of Pakistan held:‑‑ "The short point for discussion in this appeal is whether a pre‑eruption suit decree by the trial Court before 30‑7‑1986 could ultimately be decreed by a competent Court after the said date when the Federal Shariat Court struck down certain provisions of the different provincial laws regarding pre‑emption as being contrary to the Qur'an and the Sunnah. In Sardar Ali's case PLD 1988 SC 287 at 320 and 344 this Court answered the said question in the affirmative. In the instant case an ex parte decree was passed by the Court in favour of the appellants on 17‑7‑1982. In these circumstances, the suit could have proceeded after 31‑7‑1986 and decreed by a competent Court. The view of learned Single Judge that because the ex parte decree, dated 17‑7‑1982 was set aside by the Appellate Court on 17‑5‑1983, no decree by the trial Court deciding the suit existed before 31‑7‑1986, cannot be accepted. In these circumstances, following the rule laid down in Sardar Ali's case (supra) we have no hesitation in holding that the view of the learned Single Judge is not legally correct and deserves to be rectified. "

11. The same proposition came up before the august Supreme Court of Pakistan in Bahadur Khan v. Muhammad Yousuf and another (1992 SCMR 2117) in which it was held:‑‑ "On the touchstone of reasoning advanced in Rozi Khan's case, the decree passed in favour of pre‑emptor before 1‑8‑1986 are protested from the effect of Said Kamal Shah's case and all the further proceedings in. connection therewith are to be governed and decided under the, provisions of the Old Act (I of 1913). In the instant case, decree in favour of the pre‑emptor, though ex parte, was passed on 18‑7‑1985 and as such the further proceedings for the setting aside thereof and the subsequent trial after its setting aside shall be governed by the Punjab Pre‑emption Act of 1913 as if it had not been repealed."

12. In Rustam Khan and 6 others v. Muhammad Nasir and 3 others (1998 SCMR 1028) while dealing with similar situation, the august Supreme Court of Pakistan observed: "Similarly, in Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) certain questions were visualised for applicability of the previous law of pre‑emption and out of those, questions Nos. 6 and 7 which are relevant for determination of the present controversy are reproduced:‑‑ "(6) Whether a plaintiff having obtained a decree for pre‑emption in 'the trial forum lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986, and seek its restoration. (7) Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact whether the matter is pending before the trial or any higher fn‑um." The answer to these questions was given in affirmative in the judgment. It is thus clear that on the basis of the dictum in the two judgments referred to above the decree of the trial Court passed on 24‑4‑1984 in this case can be termed as 'final' for the purpose of section 35 (2) of the new Pre‑emption Act, irrespective of the fact that it was, subsequently, set aside by the High Court. Therefore, section 35(2) of the new Pre‑emption Act, would cover the case and as such all the subsequent proceedings in this case would be regulated by N.‑W.F.P. Pre emption Act, 1950. The High Court was. therefore, correct in applying section 20 of the previous Pre‑emption Act and dismissing the revision petition on the ground that the transfer by the predecessor of the appellants of his share in the disputed purchased property to a stranger would also deprive him of his pre‑emptive right on the basis of the Doctrine of Sinker. This appeal is, therefore, dismissed with costs."

13. In the case in hand, suit was decreed in favour of the petitioner/plaintiff on 31‑3‑1982, but on appeal the said decree was set aside vide judgment and decree, dated 5‑4‑1984 by the learned District Judge, Swabi, therefore, drawing wisdom from the dicta laid down in Ghulam Rasool and 2 others v. Faiz Bakhsh (1992 SCMR 1328), Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445), Bahadur Khan v. Muhammad Yousuf and another (1992 SCMR 2117), Taj Muhammad Khan v. Yaqoob Khan etc. 1996 MLD 1671 and E Rustam Khan arid 6 others v. Muhammad Nasir and 3 others (1998 SCMR 1028) I have no hesitation to hold that subsection (2) of section 35 of N.‑W.F.P. Pre‑emption Act, 1987 would cover the case in hand as such all the subsequent proceedings in this case would be regulated by N.‑W.F.P. Pre‑emption Act, 1950. The revision petition in hand is accepted, the impugned judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court with the direction to decide the same being an old case of 1979 within four months. Parties are directed to appear before the learned trial Court on 21‑3‑2002. The office is directed to ensure that the case tiles are sent back to the learned Court concerned before the date fixed. Parties shall bear their own costs. Q.M.H./654/P Case remanded.