2002 PLP 971 (CLC)

6. Contrarily, learned counsel for the respondents supported the impugned judgments and decrees stating that petitioners' suits were revived on their application under section 36 of the 1990 Ordinance which was replaced by 1991 Act and section 35 of the said Act became applicable to all the revived suits which were required to be decided afresh "according to the provisions" of 1991 Act. I1 was, thus, maintained by the learned counsel for the respondents that after judgment in Haji Rana Muhammad Shabbir Ahmad's case PLD 1994 SC 1 provisions relating to limitation period of one year as incorporated in section 36 of the 1990 Ordinance and section 35 of the 1991 Act ceased to be applicable w.e.f. 31-12-1993 and section 30 of 1991 Act applied prescribing limitation of 4 months and the suits were, thus, validly dismissed. It was further contended that petitioners' suits were revived on 19-4-1992 for fresh decision in accordance with the provisions of 1991 Act and a new suit number i.e. 88 was given to the suit and date of revival of the suit. was to be treated as the date of filing of the suit to meet the mandatory provisions of section 24(1) of the Pre-emption Act, 1991 for deposit of "Zar-e-Soam" and that the Court was competent to fix any period but not exceeding 30 days from 19-4-1992. And as such order, dated 29-4-1992 directing petitioners-plaintiffs/pre-emptors to deposit "Zar-e-Soam" after deducting "Zar-e-Punjam" within 20 days was valid and an appropriate order. Non-deposit of "Zar-e-Soam" entitled the penal consequence of dismissal of the suit under section 24(2) of 1991 Act. It was further stated that the period fixed by the Court expired on 19-5-1992 and the petitioners applied for extension thereof on 26-5-1992, the Court under the mandatory provisions of section 24 and its proviso had no power to extend the tine. Wherefor the impugned judgments and decrees dismissing petitioners/plaintiffs' applications for extending the time as well as plaintiffs-pre-emptors' suit on 14-4-1994 for non-deposit of "Zar-e-Soam" and for being beyond period of limitation was in accordance with law. It was further argued that right of pre emption was a piratical right requiring strict compliance with the provisions of the applicable law that this Court had no jurisdiction to interfere in concurrent judgments and decrees of the Courts below.

7. The facts involved in the present cases and arguments addressed the learned counsel for the parties, give rise to two questions and in decision i.e.: Whether judgment of the Honourable Supreme Court of Pakistan in the case of Haji Rana Shabbir Ahmad Khan v. Government of Punjab Province PLD 1994 SC 1 declaring one year period of limitation prescribed in section 35(2) of Punjab Pre-emption Act, 1991 as repugnant to Injunctions of Islam, is retrospectively applicable to render suits filed during interregnum period but prior to deadline of 31-12-1993 as unmaintainable, though, such suits had been filed within one year of the date of sale transaction but after expiry of four months? and (ii) Whether the learned Civil Judge could after revival of Suit No.88 (involved in Civil Revision No.3557-D of 1994) on 19-4-1992, competently pass order, dated 29-4-1992 directing plaintiff-pre-emptor to deposit "Zar-e-Soam" within 20 days and to dismiss the suit for non-compliance thereof.

8. In order to appreciate the above controversies, it is appropriate to reproduce hereunder sections 35 and 24 of the Punjab Pre-emption Art- 1991 Section

35. Saving.

(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 between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive) in which the right of pre-emption was claimed as is available under this Act shall be of no legal effect, and such suits, on an application made by the aggrieved person within sixty days of coming into force of this Act shall subject to subsection (2) be decided afresh according to the provisions thereof. (2) Notwithstanding anything in sections 13 and 30, 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-eruption establishes that he had made `Talb-e-Ishhad' in presence of two truthful witnesses," and ' "Section

24. Plaintiff to deposit sale price of the property.

(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of -the probable value of the property. (2) Where the plaintiff fails to make a deposit under subsection (1). within the period fixed by the Court, or withdraws the sum so deposited by him, hiM s suit shall be dismissed. (3) Every sum deposited under subsection (1) shall be available for the discharge of costs. (4) The probable value fixed under. subsection (1) shall not affect the final determination of the price payable by the pre-emptor. "

9. As set out in the above given statement of facts, the two suits giving rise to the present revision petitions, were filed during the interregnum period i.e. after 1st August, 1986. Suit of the petitioner of Civil Revision No.3557/D of 1994 i.e. Subedar Retired Muhammad Khan was dismissed on 26-4-1989 and plaint in the suit of the petitioners in Civil Revision No. 1855/1) of 1995 was rejected on 14-2-1989, owing to absence of any codification on pre-emption after the lapse of Punjab Pre emption Act, 1913 in view of the pronouncement of Honourable Supreme Court of Pakistan in Said Kamal's case (supra). These suits were, however, respectively revived by the learned Civil Judge on applications thereto, on 19-4-1992 and 26-6-1991 on the basis of section 36 of Punjab Pre-emption Ordinance, 1990 replaced by section 35 of the Punjab Pre emption Act of 1991. These revived suits were, however, dismissed by the learned Civil Judge after the judgment of Honourable Supreme Court of Pakistan in the case of Haji Rana Shabbir Ahmad Khan (supra), for being beyond the period of 4 months fixed in section 30 of Punjab Pre emption Act, 1991. Respective appeals thereagainst also failed. It is to be noted that the said suits were revived for having been filed within the period of one year limitation as prescribed in initially introduced section 36 of Ordinance, 1990 and section 35(2) of 1991 Act. The learned Civil Judge non-suited the Petitioners by giving retrospective application to Honourable Supreme Court of Pakistan's judgment in Haji Rana Shabbir Ahmad Khan's case. I am afraid, the learned Civil Judge as well as the learned Additional District Judge exceeded their jurisdiction and committed material irregularity in misinterpreting the effect of the said judgment on suits filed prior to the deadline of 31-12-1993. It is well-settled principle of interpretation that judgment declaring a provision, of statute as ultra vires applies prospectively and not retrospectively. Nevertheless the Honourable Supreme Court of Pakistan delivered the said judgment in the case of Haji Rana Shabbir Ahmad Khan exercising its jurisdiction under Article 203-F of the Constitution of Islamic Republic of Pakistan as Shariat Appellate Bench to examine the provisions of existing statute i.e. section 35(2) of Punjab Pre-emption Act, 1991 in the light of Holy Qur'an and Sunnah and to declare whether or not the same was repugnant to Injunctions of Islam. At the conclusion, the Honourable Supreme Court of Pakistan at page 22, para.4 held as under:-- "This decision shall take effect on 31st of December, 1993 whereby the provisions of Punjab Pre-emption Act, 1991 declared to be repugnant to the Injunctions of Islam shall cease to have effect to the extent of their repugnancy. " In view thereof, the said judgment of Honourable Supreme Court of Pakistan pronounced the law w.e.f. 31-12-1993 on the subject of Pre emption and the same could not be applied to the suits filed prior to 31-12-1993. This principle of retrospectivity has been consistently applied by this Court. In the case of Jamal-ud-Din and another v. Allah Bakhsh and another 1994 CLC 1957, it was held that:-- "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 provision of Punjab Pre-emption Act, 1991 providing that in such suits fulfilment of requirement as regards Talb-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 .... 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. " Similarly, in the case of Muhammad Khan v. Subah Sadiq and another reported in 1999 YLR 923, it was held as under:-- "Admittedly, sale in question took place on 29-11-1988 and suit was filed on 4-4-1989: Thus the transaction relates to interregnum period ranging from 1-8-1986 up to 28-3-1990. There is no doubt that according to section 30 of the Punjab Pre emption Act, 1991, the period of limitation has been prescribed as four months. But, this provision of section 30 (ibid) is not applicable to suits relating to the interregnum period as provided under section 35(2) of the Act as well as on the basis of authorities referred above. Thus the suit having been filed on 4-4-1989 in respect of sale taking place on 29-11-1988 was within time." Again in the case of Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200, it was observed that:-- "Subsection (2) was finally struck down as un-Islamic by the Shariat Appellate Bench, Supreme Court of Pakistan with effect from 31-12-1993. The judgment, shall apply prospectively. Therefore, in terms of subsection (2) of section 35 of Punjab Pre-emption Act, 1991, pre-emption suit instituted on 15-11-1989 was in time. To this extent, the decision of the Courts below is not upheld." This also finds support from the judgment of Honourable Supreme Court of Pakistan in the case of Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 pronounced on the effect of N.-W.F.P. Pre-emption (Amendment) Act, 1992 reducing the period of limitation of pre-emption' suits from "one year" to "120 days" on the pending suits:-- "It; therefore, follows that the period of limitation which was originally prescribed under section 31 of the Act as one year, stood curtailed to 120 days and this amendment was made effective with effect from 31-12-1991. The question which, however, arises for consideration in these appeals, is whether the above retrospective effect given to Act X of 1992 through subsection (2) of section 1, destroyed the vested rights of the parties and if so to what extent? .... However, the question which arises for consideration is, whether the words used in section 1(2) of Act X of 1992 are wide enough to take away the vested rights or to undo past and closed transactions. In our view, by merely providing in subsection (2) of section 1 (ibid) that the `provisions of the Act shall be deemed to have taken effect from 31-f2-1991, the suits already filed in accordance with the existing provision of section 31 of Act of 1987, could not be rendered non-maintainable. We have already, stated that while construing a provision, which is retrospective in operation and touches the vested rights of the parties, the words used therein cannot be stretched to include those cases which do not fall within the plain and unambiguous language of the legislation. The words `shall be deemed to have taken effect on 31st December, 1991 in section 1(2) of Act X of 1992, in our view, are not capable of interpretation and wide enough to include within their scope the proceedings legally instituted and which were pending on the date Act X of 1992 was promulgated. In our view, suits filed under Act of 1987 in accordance with the period of limitation prescribed under section 31 of Act of 1987, which were pending on the date Act X of 1992 was promulgated could not be dismissed on the ground that the limitation prescribed under section 31 of the Act of 1987 stood curtailed as a result of amendment brought about through Act X of 1992." The Honourable Supreme Court of Pakistan in the abovesaid judgment to support its conclusion relied upon following observations made by the Privy Council:-- "We may also refer with respect, the following observations made by the Privy Council in the case of New Bon Tev v. Kemderana Bas Mara (1983 PSC 1200) in support of our conclusion:-- `The Federal Court developed this line of reasoning by referring to part of the judgment of Williams, J: in Maxwell v. Murphy (1957) 90 CLR 261 at 277-278. The passage in the judgment of Williams, J. which the Federal Court found of great assistance as also have their Lordships reads as follows:-- `Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of cases can be considered. An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action the abridgement might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time statutes which enable a person to enforce a cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect the substantive rights'. The Federal Court in the present case accepted the reasoning of William, J. and concluded by saying:-- `On the failure the respondents to commence action within the specified period the appellants had acquired an accrued right which was designed to give them immunity for acts done in the discharge of their public duties. This right was well-preserved by the Interpretation Act, 1967. It, therefore, seems to use that in the circumstances of this case, the time for the claim was not enlarged by the 1974 Act. The Act is not retroactive in operation and has no application to a cause of action which was barred before the Act came into operation'."

10. In view of the above, the findings recorded in the impugned judgments and decrees by the learned Civil Judge and the learned Additional District Judge that the suits of the petitioners were barred by limitation are set aside. Wherefor, accepting Civil Revision No.1855/D of. 1995 titled Mst. Hameeda Begum and others v. Ch. Hafeez Ullah, the suit is remanded to the learned Civil Judge, Kharian for deciding the same afresh in accordance with law.

11. Though, the petitioner in Civil Revision No.3557/D of 1994 titled Subedar Retired Muhammad Khan v. Adalat Khan and others also succeeds on the question of limitation and it is held that his Suit No.88 of 1992 was within the period of limitation, yet, he was also non-suited under section 24(2) of the Punjab Pre-emption Act, 1991 for his failure to deposit the amount of Zar-e-Soam. In support of his contentions noted in para.5 above, the petitioner had relied upon the following judgments:-- "Ghulam Hassan v. Jamshed Ali and others reported as 2001 SCMR 1001, wherein judgment of this Court in case titled Jamshed Ali v. Ghulam Hassan 1995 CLC 957 was upheld. Riaz Ahmed v. Additional District Judge, Sargodha and another 1999 YLR 336 and Khalid Mahmood v. Abdur Rasheed and another 2000 YLR 1249 relevant at 1252. " All the above cases are on the proposition that the trial Court is under statutory duty under abovequoted section 24 and its proviso (1) of Punjab Pre-emption Act, 1991 to order deposit of Zar-e-Soam in 30 days of the filing of the suit and failure of the Court to so order deposit of Zar-e- Soam, shall not attract the adverse consequence of the dismissal of plaintiff-pre-emptor's suit under section 24(2) of 1991 Act. It was further held in all the abovesaid judgments that the trial Court has no power to extend the time beyond the period of 30 days from the date of the suit. I am afraid these judgments do not come to the rescue of the petitioner and in fact dislodge petitioner's arguments against refusal of the learned trial Court to extend the period fixed by it for deposit of Zar-e-Soam by the petitioner. The entire case perspective has been built by the petitioner on misplaced premise that the date of revival of his suit i.e. 19-4-1992 cannot be taken to be the date of filing of the suit as he had filed the suit on 9-9-1987. I am of the opinion that plaintiff's Suit No.362 of 1998 filed on 9-9-1987 terminated on dismissal by the learned Civil Judge by order, dated 26-4-1989 in absence of codification after the lapse of Punjab Pre-emption Act, 1913, in view of the pronouncement of Honourable Supreme Court of Pakistan in Said Kamal's case PLD 1986 SC

360. This suit had finished and was consigned/buried in the record room. By statutory effect of section 36 of 1990 Ordinance and/or section 35 of Punjab Pre-emption Act, 1991, petitioner's dismissed/terminated suit was allowed to be dug out, resuscitated and given a re-birth/new life w.e.f. the date of its revival on 19-4-1992 by statutory intendment. Such revived suit was to be "decided afresh" by the Court under said section 35 of the 1991 Act. The word "fresh" has been defined in Oxford Dictionary, Volume IV to mean, "new, recent, newly made". Pre-fixed with letter "a", this word i.e. "fresh" grammatically assumes wider dimension to mean "anew", new and recent in all respects. Honourable Supreme Court of Pakistan in the case of Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778, while dealing with section 48 of C.P.C. and Article 181 of the Limitation Act, referred with favour to some of the Indian decisions by observing that:-- "In some of the Indian decisions the expression 'fresh application' has been so construed to mean application for execution after the disposal of the first execution application. See Yadorao Wasudeorao Pathak v. Govindrao Ramji Pant AIR 1939 Nag. 245, Lakshmi Amma Kouchukutty Amma and another v. Raman Pillai Kumara Pillai and others AIR 1952 Travancore Cochin 268 and Venlappa and others v. Lakshmikant Rao AIR 1956 Hyd. 7." As such employment of words by law-makers in section 35 i.e. "decided afresh" can only mean to pass new orders and take all decisions whichever are required by new law to be passed or taken under the I provisions of new law. As such in my opinion "decision afresh" includes all the processes and proceedings which are required to be undertaken under Punjab Pre-emption Act, 1991 including deposit of Zar-e-Soam by the petitioner/pre-emptor. As such the learned Civil Judge was legally. justified on 29-4-1992 in directing the plaintiff to deposit Zar-e-Soam after deducting Zar-e-Punjam if already deposited within 20 days. The learned trial Court was competent under section 24 of 1991 Act to fix a date falling -within 30 days set down in the proviso to section

24. After revival of the suit on 19-4-1992, period of 30 days was to expire on 19-5-1992 wherefor, the learned Civil Judge was justified in fixing 20 1 days' period by order, dated 29-4-1992 till 19-5-1992 for deposit of balance of Zar-e-Soam by the petitioner-plaintiff. On failure of the petitioner-plaintiff to deposit the balance, petitioner's suit was validly dismissed by the learned Civil Judge under section 24(2) of the Punjab Pre-emption Act, 1991 through impugned judgment and decree, dated 14-4-1994 alongwith rejection of petitioner's application for extension of time. As such, Civil Revision No.3557/D of 1994 titled Muhammad Khan v. Adalat Khan and others is dismissed with no order as to costs. Civil Revision No. 1855/1) of 1995 is, however, accepted in terms of para. 10 above. S.A.K./M-883/L Order accordingly,