1989CLC2324 (PLP)

Masood plaintiff‑petitioner filed a suit for pre‑emption and was granted a decree against the defendant‑respondents by the learned Civil Judge, Mansehra, vide his judgment dated 29‑9‑1983 to the extent of 11 marlas out of total pre empted land.

2. In appeal by the defendants‑respondents herein, the learned District Judge, Mansehra, while accepting the same, set aside the judgment and decree of the learned trial Court and dismissed the suit of the petitioner‑pre‑emptor vide his judgment dated 24‑11‑1984. Hence this revision petition. 3. 1 have heard Mr. Zeenat Khan, Advocate learned counsel for the petitioner and M.H. Lughmani Advocate learned counsel for the respondents at length and also perused the record of the case with their valuable assistance.

4. At the very outset the learned counsel for the defendant‑respondents raised an objection regarding the maintainability of revision petition in view of the latest pronouncements of the Supreme Court in the cases of Government of N.‑W.F.P. v. Said Kamal Shah reported in PLD 1986 SC 360, Sardar Ali v. Muhammad Ali and others reported in PLD 1988 SC 287 and Mst. Safia Begum v. Ibrahim and 4 others reported in PLD 1989 SC 314 with the prayer that since no decree can be passed in favour of the petitioner‑pre‑emptor after 31st of July, 1986 under the N.‑W.F.P. Pre‑emption Act, 1950 and more particularly after 28 4‑1987 when N.‑W.F.P. Pre‑emption Act, 1987 came into force, as per its section 35 read with section 6(ibid), this revision petition be dismissed.

5. Learned counsel for the petitioner‑pre‑emptor, however, maintained that his case is rather protected when viewed in the light of the principle laid down in Sardar Ali's case inasmuch as the petitioner had obtained a decree for pre emption in the trial Court much earlier than 31‑7‑1986 and although had lost the same in the higher forum yet, can press it even at this stage and can seek its restoration. 6. 1 have given my serious consideration to the submissions (made by the learned counsel for the parties.

7. Prima facie, I find force in the arguments quite ably advanced by Mr. Zeenat Khan, the learned counsel for the pre‑emptor in so far as concerns the judgment of the Supreme Court in Sardar Alt's case. A reference to this judgment would reveal that, as per para.5, amongst the questions posed regarding the applicability of the previous laws of Pre‑emption, question No.6 states:‑ "Whether a plaintiff having obtained a decree for Pre‑emption in the trial forum, lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1989 and seek its restoration." and the corresponding answer given in para.64 indicates that the answer to the said question is given m affirmative. Such being the case it can be said with some amount of certainty that once a plaintiff obtains a decree for re‑emption in the trial Court in his favour before 31‑7‑1986, he can defend that decree, notwithstanding losing his case in the higher forum, while pressing his appeal, revision or writ petition and can seek its restoration. I have thus no hesitation in A holding so in the instant case as well, by respectfully following what has been held in Sardar Ali's case. This principle seems to have been re‑affirmed by this Court in case of Mst. Lobia Jan v. Roghan Shah reported in PLD 1989 Pesh. 174.

8. I am, however, afraid that nevertheless the instant revision petition cannot be afforded any protection when a reference is made to section 35 of the N.‑W.F.P. Pre‑emption Act, 1987 which was enforced on 28‑4‑1987. This provision may be reproduced in extenso with advantage:‑

35. Real.‑‑(1) The North‑West Frontier Pronvince Pre‑emption Act, 1950 (N.W.F.P. Act XIV of 1950) is hereby repealed (2) In the cases and appeals filed under the Law referred to in subsection (I in which judgments and decrees passed by the Courts have become fin , further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law, be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre‑emptors shall stand dismissed, except those in which right of pre‑emption is claimed under the provisions of this Act."

9. A bare reading of the fore-quoted provisions would indicate that despite the repeal of N: W.F.P Pre‑emption Act, 1950, further proceedings in the case and appeal filed there under will continue in accordance with the provisions thereof provided the judgment and decree passed by the Court have become final and further that the cases not falling under such category shall stand dismissed except, of course, in which the right of pre‑emption is claimed under the provisions of the latter Act, which is not the case in the matter before me.

10. The point that falls for determination, therefore, is as to when a judgment and decree passed by the Court is deemed to have become final in order to attract subsection (2) of section 35 of the N: W.F.P. Pre‑emption Act‑, 1987 so as to be governed under the provisions of the repealed law, namely, N. W.F.P. Pre‑emption Act, 1950. It may be pertinent to note that a judgment and decree attains finality when passed by the trial Court and neither any appeal nor any revision is preferred against it by the judgment‑debtor and, if preferred, it is decided in favour of the decree‑holder by upholding the judgment and decree so granted. The provisions of subsection (2) of section 35 of the N.‑W.F.P. Pre emption Act, 1987, in a way, are more beneficial for a decree7holder under Pre emption Act, 1950, in terms of time, than the judgment of the Supreme Court in Sardar Ali's case.

11. A reference to the record, however, would reveal that the judgment and decree passed in favour of the petitioner‑pre‑emptor was on 29‑9‑1983 by the trial Court but the same has been set aside by the learned District Judge vide its judgment dated 24‑11‑1984 and stands extinguished as such. Consequently the decree granted in favour of the petitioner, though before the target date of 31‑7 1986, having become non‑existent, failed to attain such finality as is contemplated by subsection (2) of section 35 of the N: W.F.P. Pre‑emption Act, 1987.

12. In this context of the matter, I have no hesitation in holding that the decree granted in a suit filed under the provisions of N.‑W.F.P. Pre‑emption Act, 1950 before coming into force of the N.‑W.F.P. Pre‑emption Act, 1987 i.e. before 28‑4‑1987, having not become final within the meaning of subsection (2) of section 35 ibid, further proceedings in the form of instant revision petition relating thereto, cannot be governed and continued in accordance with the aforesaid provision.

13. Resultantly this revision petition, pending before this Court, has lapsed under subsection (3) of section 35 of the N.‑W.F.P. Pre‑emption Act, 1987 and the suit filed by the petitioner‑pre‑emptor stands dismissed. The parties are, however, left to bear their own costs. AA./855/P Revision dismissed.