1993 PLP 1962 (CLC)

(b) Punjab Pre‑emption Act (I of 1913)‑‑‑ ‑‑‑‑S. 15‑‑‑Punjab Pre‑emption Act (IX of 1991), S. 35‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Pre‑emption suit‑‑‑Amendment of plaint to add the plea that necessary Talabs were made at the relevant time ‑‑‑Entitlement‑‑ Suits which were filed under Punjab Pre‑emption Act, 1913, and in which right of pre‑emption was not claimed on the basis of Islamic law; S.35, Punjab Pre emption Act, 1991, could not be invoked in such suits‑‑‑Application for amendment of plaint for claiming right of pre‑emption as available under Punjab Pre‑emption Act 1991, was therefore, not maintainable. Muhammad Ismail v. Mst Sakina Bibi PLD 1991 Lah. 60 and Noor Samand v. Sharafuddin 1992 CLC 64 rel. Arshad Mahmood for Appellant. Ch. Khurshid Ahmad for Respondent. Date of hearing: 14th April, 1993. The facts necessary for the disposal of this second appeal are that a suit for possession to pre‑empt the sale of the disputed house situate in the city of Kasur was filed on 22nd April, 1974, claiming superior right of pre‑emption on the basis of contiguity. The suit was resisted and the learned trial Court after framing necessary issues and recording evidence, dismissed the suit vide judgment and decree dated 27th September, 1987. The plaintiff‑respondent challenged the said decree of dismissal of the suit by riling an appeal which was accepted by the learned Additional District Judge, Kasur, vide judgment and decree dated 26th June, 1988. This led to the filing of the present appeal.

2. Learned counsel in support of the second appeal argued that no decree of pre‑emption under the Punjab Pre‑emption Act, 1913, could be granted after 31st July, 1986 in view of the judgments of the Shariat Appellate Bench of the Supreme Court in the cases of Government of N.‑W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) and (PLD 1990 SC 865). Learned counsel also relied on the observations made by me in the case of Muhammad Ismail v. Mst. Sakina Bibi (PLD 1991 Lah. 60). Learned counsel for the respondent, however, submitted that these judgments do not apply to cases of pre‑emption in respect of urban property and that the respondent‑plaintiff should be allowed opportunity to amend the plaint so as to add the plea that necessary Talabs were made at the relevant time.

3. There is no force in either of the two submissions of the learned counsel for the respondent. In the judgments of the Shariat Appellate Bench of the Supreme Court, the rule laid down is that section 15 of the Pre‑emption Act, 1913, with all its ancillary provisions as well as section 30 have been rendered ineffective with the result that the Act in its entirety has become impracticable and as such no suit can be processed on the basis of said Act after 31st July, 1986, except the suits decreed before the said date i.e. 31st July, 1986. The same view was expressed in the cases reported as Sultan v. Habib Ahmad (PLD 1990 SC 897) and Aziz Begum v. Federation of Pakistan (PLD 199)0 SC 899). Learned counsel stated that even ‑in respect of urban properties no decree can be granted under the Punjab Pre‑emption Act, 1913. Reference may be made to the case of Faqir Muhammad v. Government of Punjab PLD 1988 FSC 35 wherein sections 5 and 7 of Punjab Pre‑emption Act, 1913 were also held repugnant to Injunctions of Islam.

4. As regards the question of allowing amendment, reference may be made to the observations made by me in Muhammad Ismail v. Mst Sakina Bibi (PLD 1991 Lah. 60). In the case of Noor Samand v. Sharafuddin (1992 CLC 64) a Division Bench of this Court held that suits which were filed under Punjab Pre‑emption Act, 1913, and in which right of pre‑emption was not claimed on the basis of Islamic law, section 35 of the Punjab Pre‑emption Act, 1991 cannot be invoked and as such application for amendment of plaint for claiming right of pre‑emption as available under Act IX of 1991, is not maintainable.

5. For the reasons given above the judgment decreeing the suit of pre emption of the respondent/plaintiff for the first time on 26th June, 1988, cannot be sustained. The same is, therefore, set aside with the result that the appeal succeeds. The suit of the plaintiff is hereby dismissed. The parties are, however, left to bear their own cost.