P L D 1978 Peshawar 17 (PLP)

Noor Ahmed Shah plaintif-pre-emptor feels dissatisfied with the judgment and decree of the learned Additional District Judge, Mardan whereby the learned Judge on acceptance of the appeal of Sawab Shah defendant respondent, dismissed his suit, leaving the parties to bear their own costs, and, has moved the present regular second appeal.

2. It may be mentioned that the trial Judge had allowed to the plaintiff-appellant a decree for possession by pre-emption because he was a contiguous owner on payment of Rs. 7,000, which amount was paid. The pleas of the defendant-vendee that the lend was exempt from pre-emption because it was evacuee property and that in any case he had also secured contiguous land comprised in Khasra No. 1443 by an exchange dated 16-5-1966 during the pendency of the suit and as such had equal right with the plaintiff -pre-emptor, were turned down the learned trial Judge observed that sales of evacuee land after allotment were pre-emptible and that the amendment of section 17 of the N: W. F. P. Pre-emption Act (hereinafter called Pre-emption Act) by N: W. F. P. Pre-emption (West Pakistan Amendment) Act, 1967 (hereinafter called Amending Act) was applicable to the pending suits also and the contentions that the statute had been repealed by West Pakistan Repealing Ordinance, 1970 (hereinafter called Ordinance), was of no avail, firstly because of saving section 3 (d) of the same, and secondly, section 5 of the West. Pakistan General Clauses Act, 1956. The learned trial Judge also placed reliance on Abdul Majid v. The Custodian of Evacuee Property, West Pakistan and others (P L D 1962 Kar. 306), wherein identical question was involved and it was disposed of with reference to section 6-A of the General Clauses Act, which is in part materia with the West Pakistan General Clauses Act, 1956.

3. On appeal the learned Additional District Judge was in no doubt that the plaintiff-pre-emptor who was respondent before him, was an owner of the contiguous property. He was, however, of the opinion, that the Amending Act having been repealed during the pendency of the suit, by the Ordinance, and section 3(d) whereof not being in terms applicable, the old position stood restored and the defendant-vendee could defeat the pre-emption, suit by the improvement that he had made in his position on the basis of exchange. On the view of the matter, he accepted the appeal and dismissed the suit leaving the parties to boar their own costs.

4. The only point which has been argued by the learned counsel on either side is whether the amendment brought about by the Amending Act, can still be read into the Pre-emption Act, its being repealed by the Ordinance: notwithstanding. It is settled law and on this point I am re-inforced by Abdul Majid v. The Custodian of Evacuee Property. West Pakistan and others that a statute which repeals the amending statute is promulgated with a view to clear the statute book from such enactments as have served their purpose and that the repeal of amending enactment itself will not affect the amends wont brought out in the principal enactment. It is quite obvious that no sooner the amending law is enacted, its provision becomes part and parcel of the principal enactment. Such enactments do not have independent existence and it is precisely for these reasons that amending enactments are taken out from the statute book by a repealing law in the present case by the Ordinance. The argument that prevailed with the learned Additional District Judge, namely that the Ordinance had not made any express omission, insertion or substitution in the teat of section 17, is also untenable, for its ignores that Insertion of subsection (2) of section 17 of the Pre-emption Act was also an insertion in the teat. The word text as applied in section 3 (d) of the Ordinance is not restricted to the words already there in the principal enact ment. An insertion of an altogether new provision in any law would also be an insertion in the text of the law.

5. It would follow that there can be no two opinions that subsection (2) of section 17 inserted by Amending Act is still a part of the statute; book.

6. In this case the suit was instituted on 19-0-1956, and the vendee secured the exchange on 16-5-1966. The suit was decreed by the lower Court on 16-9-1911. So to speak the improvement in the status of the vendee was during the pendency of the suit and since the Amending Act was to apply to all suits or appeals pending on or instituted after the commencement of the Act which event took place on 17-7-1967, the provision of subsection (2) of section 17, stood in the way of the defendant-vendee and this being the case the right of the plaintiff-appellant was not affected.

7. On the view of the matter that I take I will allow this appeal and see aside the order of the learned Additional District Judge. The judgment and decree of the learned trial Judge is restored. In view of the peculiar circum stances of the case. I direct that the parties shall bear their own costs throughout. S. A. H. Appeal allowed.