P L D 1988 Peshawar 111 (PLP)

14. C.R.No.94 of 1987, Moula Khan etc. v. Gul Rahim Khan.

15. C.R.No.95 of 1987, Maula Khan etc. v. Gul Rahim Khan.

16. C.R.No.96 of 1987, Mir Wali Khan v. Gul Rahim Khan,

17. C.R.Np.97 of 1987, Mir WAR Khan v. Gul Rahim Khan.

18. C.R.No.110 of 1987, Gul Rahim Khan v. Maula Khan etc.

2. Civil Revision No‑42 of 1987 is directed against the judgment and order of the learned District Judge, Bannu dated 2‑5‑1987 whereby the plaintiffs/petitioners' appeal against the judgment and decree of the learned Civil Judge, Bannu dated 30‑1‑1986 was dismissed. The plaintiffs/petitioners' suit for pre‑emption against the defendant/vendee was dismissed on the ground that the defendant/ vendee was a sitting tenant of the land in suit before the sale made in his favour.

3. Civil Revision No.54 of 1987 by the plaintiff is directed against the judgement and order of the learned District Judge, D.I. Khan dated 3‑6‑1987 whereby his appeal against the judgment and decree of the learned Senior Civil Judge D.I. Khan dated 16‑7‑1986 was dismissed. The plaintiff's suit for possession by pre‑emption of the suit house, sold to the defendant through a registered sale‑deed dated 22‑2‑1981, was dismissed on the ground that the sale was exempt under section 5 (d) of the N.‑W.F.P. Pre‑emption Act.

4. In Civil Revisions Nos.57, 58 and 59 of 1987, Sakhi Jan purchased the suit land through three different Mutations Nos.10265, 10266 and 10267 attested on 17‑2‑1982. These sale transactions were pre‑empted by Mir Zalim and others by filing three separate suits bearing Nos.83/1,84/1 and 85/1 in the Court of Senior Civil Judge, Bannu. They claimed their superior right of pre‑emption on co‑sharership, participators in immunities and appendages and After framing the issues arising out of the pleadings of and recording evidence thereon, it was held by the learned trial Judge that the defendant having stated in Court that he had purchased the land some 40 years back, and the plaintiff having failed to cross‑examine him on this point, would be presumed that he has accepted the fact, held that the sales were not pre‑empted within time and dismissed the suit without giving his finding on rest of the issues. However, when the plaintiff's appeals against the judgments and decrees came for hearing before the learned District Judge, Bannu these were dismissed on the ground that on the enforcement of N.‑W.F.P, Pre‑emption Act, 1987 (Act X of 1987) hereinafter referred to as the Act, all these cases and appeals have lapsed. It was further held that the cases and appeals not covered by subsection (3) of section 35 of the Act, and instituted under the law referred to in subsection (1) shall lapse and suits of the pre‑emptor shall stand dismissed except, those in which right of pre‑emption is claimed under the provisions of the Act (New Act). In this context it was observed that as the plaintiffs have not claimed pre‑emption of the suit land under the provisions of the Act i.e. they have not fulfilled the condition laid down in section 13 of the Act their suits and appeals were hit by the mischief of subsection (3) of section 35 of the Act. The judgments and decrees of both the Courts below are challenged in these revision petitions.

5. In Civil Revision No.68 of 1987, the plaintiff/petitioner's suit for pre‑emption of the land, sold through Mutation No.8882 attested on 23‑5‑1984, was decreed by the learned Civil Judge, on 8‑12‑1986. In appeal by the defendant/vendee, the judgment and decree of the trial Judge was set aside by the learned District Judge, basing reliance on the provision of Section 35 of the Act, and the plaintiff's suit was dismissed Vide judgment and order dated 25‑7‑1987. Similarly in Civil Revision Petition No.69 and C.R. No.70 of 1987, the pre‑emption suits filed by Abdullah Khan, plaintiff /petitioner and decreed in his favour by the learned Civil Judge, Bannu on 7‑3‑1984, were dismissed by the learned District Judge Bannu, on the acceptance of the defendant/ vendee's appeals on the strength of the provision of section 35(3) of the Act vide his orders dated 7‑7‑1987 impugned in these revision petitions.

6. In Civil Revision No.75 of 1987, Atta Muhammad plaintiff,' petitioner has challenged the judgments and orders of the learned District Judge, Bannu dated 5‑7‑1987 whereby he set aside the judgments and decrees of the learned Senior Civil Judge, passed in his favour in Suits No.13/1 (Nim) and No.18/Nim, without adverting to the merits of the case basing reliance on section 35(3) read with section 13 of the Act.

7. Bahadur Khan plaintiff /petitioner has challenged in Revision Petition No.76 of 1987 the judgment and order of the learned District Judge, Bannu whereby he accepted the defendant/vendee's appeal, set aside the judgment and decree of the learned Civil Judge. Bannu, dismissed his suit for possession by pre‑emption of the land in suit on the ground that he had not claimed his right of pre‑emption under section 13 read with section 35(3) of the Act.

8. Hazrat Yousaf plaintiff /petitioner has challenged in Civil Revision No.77 of 1987 the judgment and order of the learned District Judge, Bannu whereby he dismissed his appeal against the dismissal of his suit for possession by pre‑emption of the land on the ground that he had not claimed his right of pre‑emption available under the Act.

9. In Civil Revision Petition No.93 of 1987, the facts are that Mula Jan and three others defendants/ vendees who purchased the suit land through MutationNo.20709 attested on 16‑3‑1982 was pre‑empted by Gul Rahim Khan in Suit No.249/1 in the Court of Civil Judge, Bannu on 29‑1‑1985 basing his superior right of pre‑emption on co‑sharership, participator in immunities and appendages and contiguity. The plaintiffs suit was, however, dismissed by the learned Civil Judge on his finding given on issue No.7 that the defendants/ vendees where co‑sharers in the suit Khata since before the sale in question and had also become owner in it through an exchange transaction. The plaintiff the challenged the same in an appeal in the Court of District Judge who, relying on the provision of section 20 read with section 35(3) of the Act held that the plaintiff/ appellant and the defendants/ vendees both having equal right were to share the land equally as provided under the mentioned provision of law, partially allowed it, set aside the judgment and decree of the learned trial Court, and remanded the case back to the trial Court for giving its decision on issues Nos.6 and 7, pertaining to market value and the plaintiff's superior right of pre‑emption in the light of the finding. Similar are the facts in Civil Revision Petitions Nos. 94, 95, 96 and 97 of 1987.

10. In Civil Revision petition No.65/87, the plaintiff has challenged the judgment and decree of the learned trial Judge, whereby his suit for possession by pre‑emption:, of the sale of a residential house through a Court decree in Suit No.5/1 decided on 27‑1‑1983 for an ostensible sum of Rs.40,000, basing his superior right of pre‑emption on contiguity, participator in immunities and appendages such as discharge of water and right of way, was dismissed. Plaintiffs appeal against the same was also dismissed by the learned District Judge on 9‑6‑1987. In resisting the plaintiffs suit one of the pleas raised by the defendant was that the sale was exempt from pre‑emption under section 5(d) of the N.‑W.F.P. Pre‑emption Act 1950. After recording evidence of both the parties, the learned trial Judge; dealing with the superior right of pre‑emption of the plaintiff and the plea of exemption, reflected under issues Nos. 3 and 7 respectively, held that though the plaintiff owns a house contiguous to the suit house but the house in dispute which measures four marlas was exempt from pre‑emption and dismissed the suit on 17‑6‑1986. In appeal filed, by the plaintiff against the judgment and decree, while repelling the arguments of the learned counsel for the appellant that section 5(d) of the N.‑W.F.P. Pre‑emption Act having been' declared as against the injunctions of Islam and that the trial Judge has wrongly extended the benefit of section 5(d) to the defendant/ vendee, it was held that the exemption provided under section 5(d) of the N.‑W.F.P.. Pre‑emption Act, 1950 was in the field and operative till 31‑7‑1986 i.e. at the time of sale of the property and also at the time of institution of the suit. On these findings the appeal was dismissed. Aggrieved by judgment, decrees and orders of the Courts below the plaintiff has come in revision petition to this Court.

11. Learned counsel for the parties apart from addressing their arguments on merits of their individual, cases also argued at length the common questions of law involved in all these petitions i.e. the operation and the effect of the N.‑W.F.P. Pre‑emption Act, 1987 on the cases and the appeals filed under the repealed law. To be more precise, whether the provisions of the N.‑W.F.P. Pre‑emption Act, 1987 on which reliance is placed by the learned District Judge are retrospective in its operation and, if so, to what extent.

12. In support of the arguments that the provisions of the Act are retrospective in its operation, the learned counsel referred to section 13 and section 35 of the Act. The former makes provision for the manner and form for the confirment of right of pre‑emption and its enforcement and the latter deals with the repeal of the N.‑W.F.P. Pre‑emption, Act and the effect of such repeal on the pending cases and appeals filed under the repealed law. It was contended that for the enforcement of a substantive right of pre‑emption, the plaintiff was required to have acted in the manner laid down under section 13 of the Act. The entire proceedings right from the claim of a right of pre‑emption and filing of the suit till the passing of the decree being of procedural nature would be deemed to be retrospective in its operation. Accordingly the finding of the learned District Judge that non‑observation of the provision of section 13 of the Act which is the basis for claiming a right of pre‑emption enforceable under the law, would be hit by subsection (3) of section 35, is well‑founded. According to the learned counsel the last words in the concluding part of subsection (3) of section 35 of the Act manifestly and clearly expresses the intention of the legislature in giving retrospective effect to the provisions of the new Act.

13. The learned counsel for the plaintiffs/petitioners in repelling the contentions argued that on the plain reading of subsection (2) of section 1 with rest of Me section of the Act as a whole expresses the intention that the Act has been made operative prospectively i.e. from the date when the Act came into force i.e. specially when there is no provision in the Act itself making the law operative retrospectively. The extent of its retrospective operation can be gathered from subsections (2) and (3) of section 35 of the Act. It was argued that subsection (3) of section 35 provides that only those cases, in which the right of pre‑emption is based on the grounds other than those available to the pre‑emptors under the new law shall laps, meaning thereby that the new law would have no effect on the cases and appeals filed under the repealed law, provided the right of pre‑emption is such cases and appeals is claimed on the grounds which are also the grounds on which superior right of pre‑emption can be claimed under the new law. It was further argued that even otherwise, if any of the provisions of the new law affects a right accrued to a party under the repealed law, such provision in the law would be void and to the extent unenforceable in the Court of law. All vested rights under the repealed Act would not be taken away by the new law in any other manner except by specific provision made therein for its retrospective operation to the pending cases. It was argued that retrospective operation is not to be given to a statute so as to impair the existing rights or obligations arisen of or imposed by the repealed law. In support of the proposition, reliance was placed on Abdul Ghaffar v. Saghir Ahmed, a Full Bench Judgment of the Lahore High Court, reported in P L D 1987 Lah. 858.

14. In order to appreciate the arguments of the learned counsel for the parties, I would like to reproduce the relevant sections of the N.‑W.F.P. Pre‑emption Act, 1987 (Act X of 1987). These are as follows: ‑

1. Short title, extent and commencement.‑ (1) This Act may be called the North‑West Frontier Province Pre‑emption Act, 1987. (2) it extends to the whole of the North‑West Frontier Province (3) It shall come into force at once. Demand of pre‑emption.‑‑(1) The right of pre‑emption of a person shall be extinguished unless such person makes demands of pre‑emption in the following order, namely:‑ (a) Talib‑i‑muwathibat; (b) Talib‑i‑ishad; and (c) Talib‑i‑khusumat. SECTION

35. REPEAL. (1) The North‑West Frontier 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 (1) in which judgments and decrees passed by the Courts have become final, 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."

15. Undoubtedly the new law viz. Act X of 1987 is prospective in its operation on the plain reading of section 1(3) of the Act. However, as a general rule of interpretation the procedural part of a statute, in the absence of expressive provisions, is always considered to be retrospective in its operation. The provisions governing a right to prosecute or defend in the manner prescribed by the Statute or providing for its trial by a particular forum through an Act of Parliament are considered to be procedural. However, this general principle of interpretation of Statutes, in the absence of express provision in Statute itself, is subject to certain exceptions. If apart from dealing with the procedural matter, such law affects the existing rights or creates new obligations, imposes new duty or attaches a new disability in respect of a transaction or conduct already passed, it must be presumed to have no retrospective effect. Their Lordships of the Supreme Court of Pakistan dealing with the proposition in Adnan Afzal v. Cap. Sher Afzal P L D 1969 Supreme Court 187 held that: "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence..........also pertain to procedure, provided the burden of proof is not shifted. Thus, a Statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any‑existing rights are affected or the giving of a retrospective operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retrospective application tends to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retrospectively."

16. Their Lordships have further held that a line of distinction is to be drawn between the cases where a procedural statute does not impair an existing right and those in which the procedural law interferes with the existing right, already accrued to a person under the repealed statute. This distinction is very much material for interpreting a statute. The relevant part of their Lordships' observations in this respect is as follows:‑ "Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retrospective operation cause inconvenience or injustice then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retrospective application will tend to promote justice without any consequential embarrassment or detriment' to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retrospectively."

17. In view of the principle laid down in the case cited and going through section 13 of the Pre‑emption Act, 1987, it can, by no stretch of imagination, be justified to be retrospective in its operation. Its retrospective operation, as is contended by the opposite party, would definitely impair that right of pre‑emption, which existed in favour of the plaintiffs /pre‑emptors under section 12 of the N.‑W.F.P. Pre‑emption Act, 1950 arising from a sale and made before its repeal and steps for the enforcement of such right already taken by instituting suit in a competent Court of law. It can, therefore, be said that section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 is neither retrospective in its operation nor can it have any bearing on the cases already pending in Courts instituted under the repealed law. Even otherwise, the non‑fulfilment of the steps required, such as the demand of pre‑emption provided for under section 13 of the Act being not in the field before the filing of the suit, would not be objected to, otherwise it would lead to an absurdity. In support of the view reliance can also be placed on Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and section 4 of the West Pakistan General Clauses Act, 1956. Their Lordships of the Lahore High Court in Abdul Ghaffar Khan v. Saghir Ahmad Aslam a Full Bench judgment reported in P L D 1987 Lah. 358, on consideration of both these provisions observed as follows:‑ "The Constitution being the supreme and paramount law of the land, its provisions, including those contained in Article 264, held sway over any other statutory law and even over judge‑made law. In the absence of any provision to the contrary in the Constitution, the various rights, privileges, obligations, liabilities, etc. of the parties of litigation (which had taken birth before the 31st July, 1986) will continue to be governed and determined till the end of the litigation (at all stages including suits, appeals, revision, writs, execution of decrees. and ancillary proceedings) started before the 31st July, 1986, will be regulated and decided from the beginning, till end in accordance with the repugnant laws which were repealed by virtue of the Constitution. The clear provisions of Article 264 leave no room for doubt that with the repeal of the repugnant laws the pre‑emptor's right will continue to exist, be enforceable and will in no way be impaired during the pendency of any stage of such litigation." The non‑fulfilment of the requirement i.e. the demand of pre‑emption under section 13 of the Act, having the effect of extinguishing an existing right of pre‑emption available under the repealed law, would not fall within the purview of the categories of those procedural laws which could be held to be retrospective in its operation,

18. It may however, be pointed out that subsection (3) of section 35 of the Act deals with the determination of the right of pre‑emption of a plaintiff in pending cases and appeals. Neither it has got any relevancy to the pleas which were then available to the vendees under the repealed law, at the time of sale, the institution of the suit and its decision, nor it debars the defendant/ vendee from raising such pleas if otherwise available to him in suits filed, under the repealed law. Section 6 of the Act provides in whom the right of pre‑emption vests and the order of preference which in substance, and to a greater extent, is the reproduction of section 12 of the repealed Act with the slight difference that the first right. of pre‑emption vested in a sitting tenant has been taken away. Hence all the cases and appeals arisen under the repealed law would be deemed pending and are to be disposed of thereunder, provided the right of pre‑emption is based on (a) Shafi‑Sharik (a person who is a co‑owner in the corpus of the undivided immovable property sold with other person or persons. (b) Shafi Khalit. (a participator ,in the special rights attached to the immovable property sold, such as right of passage of water or right of irrigation). (c) Shafi Jar. (a person who has a right of pre‑emption because of owning an immovable property adjacent to the immovable property sold).

19. The special feature of the exercise of the right of pre‑emption is that the plaintiff/pre‑emptor must have a superior right: of pre‑emption as against the defendant/vendee all the three stages viz. at the time of sale, filing of suit and passing of the decree. The non‑existence of a right of pre‑emption or the loss of such right, if existed, by the plaintiff either by his own act, or by a statutory provision, at any of the three stages would disentitle the plaintiff ‑pre‑emptor to the decree prayed for in the suit. If the right of pre‑emption did not exist in respect of the sale of the property during the enforcement of the repealed law on any of the grounds such as those mentioned in section 5 of the repealed Act, there is no provision in the new Statute debarring the defendant/vendee from resisting the plaintiffs suit on such ground. The rights and privileges accrued to defendant/ vendee before the new law cannot be taken away retrospectively.

20. In view of the above, Civil Revision No.23‑D of 1979 is accepted, the judgment and order of the learned Appellate Court is set aside and that of the learned trial Court restored. The concurrent findings of facts arrived at by the Court below in C.R.No.51/85, C.R.No.42/1987, C.R. No.54/1987, C.R. No.6511987 and C.R.No.110 of 1987 need no interference in exercise of revisional jurisdiction, these are, therefore, dismissed leaving the parties to bear their own costs. Revision No.57 of 1987, C.R.No.58 of 1987, C.R.No.59 of 1987, C.R.No.68 of 1987, C.R.No.69 of 1987 C.R. No.70 of 1987, C.R.No.75 of 1987, C.R. No.76 of 1987, C.R.No.77 of 1987, C.R. No.85 of 1987, C.R.No.88 of 1987, C.R.No.93 of 1987, C.R.No.94 of 1987, C.R.No.95 of 1987, C.R.No.96 of 1987, and C.R. No.97 of 1987 are accepted, the judgments and orders of the learned District Judge /Additional District Judge, impugned in these revision petitions, are set aside and the cases are sent back to the Appellate Court for of the appeals on merits in the light of the observations made in this judgment. Parties in these revision petitions are to bear their own costs. A.A. /614/P Order accordingly.