1994 PLP 1957 (CLC)

Date of hearing: 19th April, 1994. This judgment will also dispose of Civil Revision No. 971/94 as the questions of law and facts requiring determination in both of them are common.

2. This revision petition is directed against order dated 14‑7‑1991 passed by learned Civil Judge, Shakargarh through which an application made by the petitioners/defendants under Order 7, Rule 11, C.P.C. seeking rejection of the plaint of the suit filed by the respondent for possession of land through pre emption has been rejected.

3. The main ground urged in the application was that according to averments in the plaint the requirements of law as regards Talab‑i‑Muwathibat had not been fulfilled about which the learned trial Court held that according to the provisions of Ordinance 28 of 1990 in such suits if requirement as regards Talab‑i‑Ishhad had been fulfilled the same was sufficient to maintain the suit, therefore, the plaint was not liable to be rejected because averments in the plaint had been made that the requirements as regards Talab‑i‑Ishhad had been fulfilled. The application was dismissed through the impugned order dated 14‑7‑1991.

4. Learned counsel for the petitioner relying upon judgment reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of the Punjab (PLD 1994 SC 1) of the Appellate Shariat Bench of the Supreme Court submitted that the provisions of Punjab Pre‑emption Act, 1991 which provided that in such suits there was no necessity to fulfil requirement as regards Talab‑i‑Muwathibat in case requirement as to 'Talab‑i‑Ishhad had been fulfilled, the right of pre‑emption could be enforced and the suit was maintainable, was declared repugnant to the Injunctions of Islam, therefore, from the date of the said judgment the said provision of law ceased to be the law as such the suit was liable to be dismissed. To amplify this argument learned counsel for petitioner endeavoured to maintain that since fulfilment of requirements as regards Talabs according to the rule laid down in Said Kamal Shah's case were substantive part of right of pre‑emption, therefore, according to well‑established law the said right was to be retained at all the three stages namely at the date of the sale, the date of institution of the suit and the date of final judgment of the trial Court, as such the respondent/plaintiff could not maintain the suit. S. According to the reported judgment on which reliance has been placed the Appellate Shariat Bench of the Supreme Court as required by the Constitutional provisions fixed 31‑12‑1993 as the date with effect from which the provisions of Punjab Pre‑emption Act, 1991 providing that in such suits fulfilment of requirement as regards Talab‑I-Ishhad only was sufficient to maintain the suit, would cease to be the law, therefore, application of the same to a suit instituted prior to the said date cannot be made. In this case the suit was filed after 31‑7‑1986 i.e. after the date w.e.f. which the rule laid down in Said Kamal Shah's case became operative, therefore, the same was covered by the provisions of section 36(1)(2) of the Punjab Pre‑emption Act, 1991 which is to the following effect:‑ "(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 Ist 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 the Punjab Pre‑emption Ordinance, 1990 (No. XVIII of 1990), 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 suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre‑emptor establishes that he had made `Talab‑i‑Ishhad' in the presence of two thereby truthful witnesses."

6. No doubt according to the settled law a pre‑emptor is required to retain right of pre‑emption on the three abovementioned dates in order to succeed in the suit which would only mean that if the plaintiff claims that right of pre‑emption was vested in him because of his being:‑‑ (a) Shafi Sharik; (b) Shafi Khalit, and (c) Shafi Jar. as provided by law he was to retain the said qualification on all the three abovementioned dates. As regards requirement of Talabs and their fulfilments, the same are not the qualifications' on which the right of pre‑emption is vested but they are substantive part of that right only for the purpose of its enforcement. The argument of the learned counsel for the petitioner as regards extension of the above rule i.e. retention of right of pre‑emption on all the three dates to the fulfilment of requirement as regards Talabs cannot be accepted unless it is held that the law required that Talabs should also be made again and again at all the three relevant dates which is not provided by the express provision of the law itself apart from the fact that such an interpretation would render the law itself as ineffective and not capable of enforcement. The Talabs according to law were required to be made prior to the institution of the suit and not thereafter, therefore, once the plaint in the present suit satisfied the requirements of section 36(2) of the Punjab Pre emption Act, 1991, the maintainability of the same was not adversely affected by a declaration by the Appellate Shariat Bench of the Supreme Court to the effect that the said provision of law would cease to be the law w.e.f. 31‑12‑1993 which declaration would be applicable to the suits instituted thereafter.

7. Learned counsel for petitioner referred to judgments reported as Abdul Ghaffar and 2 others v. Malik Muhammad (1993 CLC 2437), Mst. Safia Begum v. Muhammad Ibrahim and 4 others (1993 MLD 2096) and Ahmad Hussain v. Muhammad Hussain (PLD 1993 Lah. 44) in support of his above contention. In none of these judgments the provisions of section 36 of the Punjab Pre‑emption Act, 1991 were directly considered and interpreted in the light of the judgment of the Appellate Shariat Bench of the Supreme Court as discussed above, therefore, the rule laid down in these judgments is not attracted to the facts of the present case.

8. The trial Court has not committed any material irregularity and illegality in exercise of jurisdiction vested in it under the law while passing the impugned order. Both the revision petitions fail which are accordingly dismissed with no order as to costs. AA./J‑80/L Revision petitions dismissed.