P L D 1993 Peshawar 157 (PLP)

Date of hearing: 22nd March, 1993. This revision petition under section 115 of the Civil Procedure. Code (V of 1908) calls in question the judgment and the decree dated 9‑6‑1991 of the learned District Judge, Abbottabad, whereby he reversed the judgment and decree dated 27‑i1‑1990 of the learned IIIrd Civil Judge, Abbottabad, by which the plaintiff‑pre‑emptor had been non‑suited on the ground of his failure to make `Talabs'.

2. The brief facts of the case are that Muhammad Sarwar respondent No.1 had pre‑empted the sale of the land mutated in favour of the petitioner. This suit was dismissed by a learned Civil Judge on 31‑10‑1983. Respondent No.l went in appeal which was accepted by a learned Additional District Judge, Abbottabad, vide his judgment and decree dated 30‑9‑1984 remanding the suit for decision afresh on the issues which had been left undetermined by the learned trial Judge. A revision petition against the order of learned Addl. District Judge filed before this Court was accepted on 29‑i1‑1989 and the case was remanded to the learned trial Judge on the basis of the dictum of the Supreme Court in the case of Ahmed v. Abdul Aziz (PLD 1989 SC 771). In the second round, the learned trial Judge non‑suited the respondent‑pre‑emptor on the ground that he has "not complied with the mandatory provisions of Talabs etc. and since no decree has been passed in his favour up to 31‑7‑1986, therefore, his suit is not maintainable and stands dismissed".

3. The judgment and the decree of the learned trial Judge was assailed with reference to the case of `Ghulam Sarwar v. Abdul Jalil and 2 others' PLD 1991 SC 500 that "in the instant case a decree as such has been passed on two occasions i.e. on 31‑10‑1983 and 30‑9‑1984 by the trial Court as well as by the first appellate Court respectively and hence in the light of section 35 of N.‑W.F.P. Pre‑emption Act (X of, 1987) (hereinafter called as the New Act)" "this case shall be governed by the old N.‑W.F.P. Pre‑emption Act, 1950". The learned appellate Court held the view that under section 35(2) of the New Act decision refers to the passage of the decree not necessarily in favour of the pre emptor and invoked the definition of `decree' occurring in section 2(2) of the C.P.C. to define a decree to mean the "formal expression of adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final". The learned District Judge relying on this definition held that the word `decree' occurring in section 35(2) of the New Pre‑emption Act was never meant to restrict the decree in favour of the pre emptor but it included even the decree non‑suiting him. In support of this view he placed reliance on `Kendal Khan v. Agha Khan' (PLD 1990 Peshawar 21) which according to him has not been set aside up to 9‑6‑1991 when he was pursuaded to remand the case to the trial Judge for decision afresh on the remaining issues.

4. Malik Fazal Hussain, learned counsel for the vendee‑petitioner, placed reliance on the recent authorities of the Supreme Court reported as (1) Mubarak Khan v. Ali Rehman 1991 SCMR 479 and (2) Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445 to contend that the words "judgments and decrees passed by the Courts have become final" occurring in section 35(2) of the New Act have been held to be "those judgments and decrees wherein the suit of the pre‑emptor had been decreed by the Courts rendering it" and thus the finding of the learned appellate Court that this expression enacted in section 35(2) of the New Act has been misconstured by the appellate Court resulting in illegal remand of the case.

5. On the contrary, Mr. Sultan Khan Jadoon, learned counsel for pre emptor‑respondent referred to the judgment of this Court in `Kendal Khan's' case referred to above wherein the words `final decision' in section 35(2) ante with reference to section 2(2) of the C.P.C. had been interpreted to mean that if at the time of promulgation of the New Act a decree in the pre‑emption suit had already been passed and the appeal against it is pending which is a further proceeding relating to the cases in which the decree was passed the operation of the Old Act shall continue and govern the appellate Court's finding.

6. After hearing the learned counsel of the parties at length I find substance in the contention of the learned counsel for the petitioner‑vendee. The preset controversy has been finally set at rest in a recent judgment of the Supreme Court in the case of `Rozi Khan and others v. Syed Karim Shah and others' 1992 SCMR 445 wherein the words " 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 has 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 /a suit has been altogether excluded. In consequence, the case of the petitioner would be governed by the New Act. In `Rozi Khan's' case referred to above it was also held that "the effect of provisions of section 35 of the New Islamic Law of Pre‑emption is that if at the time of enforcement of Islamic Law of Pre emption (i.e. 1‑8‑1986 when the principles of Islamic Common Law become applicable in the absence of statutory law or after 28‑4‑1987 when Act X of 1987 was promulgated) a final decree in the sense explained above (namely a decree in favour of the plaintiff‑pre‑emptor decreeing the suit for pre‑emption) had already been passed and an appeal against it was pending "which is a further proceeding relating to the case in which the decree was passed" the said further proceeding shall be governed and decided under the provisions. of the Old Act of 1950 and Act X of 1987 would not be attracted". A Similarly if a final judgment (decreeing the suit of the plaintiff‑pre‑emptor) had been passed before the aforesaid dates and the judgment was being challenged before the Revisional Court or the High Court in its writ jurisdiction such proceeding too shall be governed by and decided under the provisions of the Old Law. Reference may be made to CA. No. .66‑P/89 (Ghulam Allah M. Jaffar Khan v. Dur M.Khan) at page 457 of the report in `Rozi Khan's case cited above. In that case no decree in favour of pre emptor‑plaintiff had been passed until 31‑7‑1986. The judgment of the High Court dated 14‑11‑1989 remanding the case to the trial Court for decision on merits was, therefore, held unsustainable in law and in consequence the appeal was allowed and the judgment dated 14‑11‑1989 of the High Court was set aside and the pre‑emptor was non‑suited. The facts of the present case are analogous to that of Ghulam Allah M. Jaffar Khan's case (CA. 66‑P/89) referred to above, therefore, the impugned judgment of the learned District Judge is not sustainable in law.

7. For the foregoing reasons, this revision succeeds and is allowed and the impugned judgment dated 6‑9‑1981 is set aside while that of learned trial Judge dated 27‑11‑1990 is upheld.

8. The result is that the pre‑emptor‑respondent stands non‑suited, with no order as to costs. AA/P‑1473/P Revision accepted.