2005 PLP 1208 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court, has been preferred against the. judgment, dated 3-11-2004 passed by learned Judge in Chambers of the Peshawar High Court, in a civil revision arising out of a suit for pre-emption.

2. The relevant facts in the background are that the appellant filed a suit for possession through pre-emption in the Court of Senior Civil Judge/Aala Illaqa Qazi, Dir, at Taimergara and the respondents after filing written statement, moved an application for rejection of plaint on the ground that the suit was filed on 8-4-1993 pre-empting the sale which had taken place on 3-12-1992 with a delay of about eight months whereas the limitation for filing the suit for pre-emption was 120 days under section 31 of N.-W.F.P. Pre-emption Act, 1987, as amended by Act X of 1992, therefore, the suit was barred by time. The appellant resisted this application on the ground that N.-W.F.P. Pre-emption Act, 1987 as amended, was extended to PATA Area subsequent to the filing of the suit and the limitation for filing the suits for pre-emption in the said area prior to the enforcement of N.-W.F.P. Pre-emption Act, 1987, would be governed by N.-W.F.P. Pre-emption Act, 1950 under which limitation for filing of a suit for pre-emption was one year from the date of sale. The learned trial Judge having allowed this application, dismissed the suit vide judgment dated 20-9-1995 and the appeal preferred by the appellant was also dismissed by the District Judge, Dir/Zila Qazi Dir at Taimergara vide judgment, dated 13-11-1995. The civil revision filed by the appellant in the High Court also met the same fate. The learned Judge in the High Court in the light of law laid down by this Court in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 held that the provisions of N.-W.F.P. Pre-emption Act, 1950 were declared un-Islamic by Shariat Appellate Bench of the Supreme Court and N.-W.F.P. Pre-emption Act, 1987 was enforced in PATA Area w.e.f. 25-9-1994, therefore, the right of pre-emption in the said area in the intervening period would be governed by general Islamic Law. The learned Judge in the light of judgment of Federal Shariat Court in Muhammad Ismail Qureshi acid another v. Government of N.-W.F.P. and another 1992 PSC 75 held that at the relevant time, the period for filing of a suit for pre-emption in PATA Area would be 120 clays, therefore, the suit filed on 8-4-1993 pre-empting the sale dated 3-12-1992, was barred by time.

3. Leave was granted in this appeal vide order, dated 18-12-2000 in the following manner: "(1) The sale in dispute was brought about on 3-12-1992, the suit was instituted on 8-4-1993 whereas the N.-W.F.P. Pre-emption Act, 1987 was enforced in PATA on 25-9-1994, therefore, it is to be determined as to whether limitation provided under N.-W.F.P. Pre-emption Act, 1950, N.-W.F.P. Pre-emption Act, 1987 or that provided under general Islamic Law would govern this case. (2) What is the effect of the rule laid down in Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 and Muhammad Ismail Qureshi v. Government of N.-W.F.P. 1992 PSC 75 over the facts of this case."

4. Learned counsel for the appellant has contended that N.-W.F.P. Pre-emption Act, 1950, was declared un-Islamic by Shariat Appellate Bench of this Court in Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 with the direction that a consolidated law of pre-emption should be enacted by 31-7-1986 and in pursuance thereof, N.-W.F.P. Pre-emption Act, 1987 was enacted and enforced in PATA Area w.e.f. 25-9-1994, therefore, the right of pre-emption in the intervening period in absence of statutory law, would be exercised under general Islamic Law and not under the N.-W.F.P. Pre-emption Act, 1950. The provision of section 31 of N.-W.F.P. Pre-emption Act, 1987, providing the period of limitation of one year for enforcing the right of pre-emption was examined by the Federal Shariat Court in exercise of its suo motu power in Muhammad Ismail Qureshi and another v. Government of N.-W.F.P. and another 1992 PSC 75 and having come to the conclusion that limitation of one year for filing a suit for pre-emption was in conflict to the law laid down by Shariat Appellate Bench of the Supreme Court in Said Kamal Shah's case, declared the said provision, repugnant to the Injunctions of Islam. The Court in the light of parallel provisions in the Punjab Pre-emption Act, 1991 providing limitation of four months directed for amendment on the basis of recommendations of Council for Islamic Ideology, directed for necessary amendment in law. In consequence thereto, section 31 of N.-W.F.P. Pre-emption Act, 1987, was amended by Act X of 1992 wherein a period of 120 days was provided for enforcement of right of pre-emption.

5. The learned counsel when pointed out that during the period when there was no statutory law in PATA Area, the pre-emption suits in the said area, would be governed by general Islamic Law and a period of 120 days would be treated limitation for the suits for pre-emption as was held by the Federal Shariat Court in Muhammad Ismail Qureshi v. Government of N.-W.F.P. 1992 PSC 75, he contended that under general Islamic Law no procedure of limitation for filing of a suit, was fixed and the period of 120 days proposed in the judgment referred to above, may in general terms be considered a reasonable time for filing of a suit but would not have the force of statutory provisions for the purpose of limitation for filing a suit for pre-emption. The amendment in section 31 of N.-W.F.P. Pre-emption Act, 1987, providing a period of 120 days for limitation for the pre-emption suits, in the light of the judgment of Federal Shariat Court in the case of Muhammad Ismail Qureshi (supra) was introduced in 1992 and the (ibid) Act was enforced in PATA Area in 1994 but as discussed above, under the general Islamic Law, the limitation for the purpose of a suit for pre-emption in PATA Area would be 120. days in the intervening period and a suit filed beyond this period would be barred by time. The appellant without seeking the condonation of delay filed the suit after eight months from the date of sale and learned counsel has not been able to satisfy us that in absence of statutory law in PATA Area, the limitation of 120 days for filing of a suit for pre-emption was not in consonance with the concept of reasonable time in general Islamic Law or that the judgment of the Federal Shariat Court in which it was held that the limitation of 120 days would be considered reasonable for filing a pre-emption suit under general Islamic Law was in conflict to the law laid down by the Shariat Appellate Bench of this Court in Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC

360. The concept of law of pre-emption in Islam is to exercise the right of pre-emption without unnecessary delay and keeping in view this concept, it was considered that a period of 120 days was reasonable. The old pre-emption law (N.W.F.P. Pre-emption Act, 1950) was no more operative after 31-8-1986 and N.W.F.P. Pre-emption Act, 1987 was applied in PATA Area w.e.f. 25-9-1994, therefore, in the interregnum, the pre-emption suits in the said Area would necessarily be governed by the general Muslim Law of pre-emption for which the period of 120 days for limitation was considered reasonable and the suits filed beyond the said period, subject to all just exceptions, would be treated as barred by time.

6. In the light of foregoing reasons, we having found no substance in this appeal, dismiss the same with no order as to costs. S.A.K./S-102/S Appeal dismissed.