1995 PLP 571 (MLD)

Mian Munawar Hussain for Appellants. S.M. Tayyab for Respondents. MUNIR A. SHAIKH, J.‑‑‑This appeal has arisen from a pre‑emption suit and has been filed by the plaintiff which is directed against the order dated 11‑1‑1989 passed by the learned trial Court through which the plaint of the pre -emption suit filed by the appellants has been rejected.

2. The respondents have moved C.M. No.1/C‑92 praying that the appeal be dismissed as the same is not maintainable.

3. We have heard learned counsel for the appellants and the respondents in relation to main appeal and also the said civil miscellaneous application. The sale which the appellants sought to pre‑empt through the suit was made prior to 1975. The appellants filed suit on 23‑6‑1975 to pre‑empt the said sale on the ground that they were co‑sharers in the Khata, as also collaterals of the vendor. This suit was admittedly filed under the Punjab Pre‑emption Act, 1913. No decree at any stage of the proceedings in the suit was admittedly passed in favour of the appellants/pre‑emptors before 31‑7‑1986.

4. The learned trial Court on the application made by the respondents under Order 7, Rule 11, C.P.C. passed the impugned order dated 11‑1‑1989 through which the plaint of the said suit has been rejected as there was no law of pre‑emption in force at that time.

5. Learned counsel for the appellants argued that the suit filed by the appellants is liable to be revived under section 35 of the Punjab Pre‑emption Act (IX of 1991).

6. We are, afraid the said section is not applicable to any suit of pre -emption filed udder the Punjab Pre‑emption Act, 1913, prior to 1‑8‑1986. The said section is applicable to a suit which was filed after 31‑7‑1986 on which date the Punjab Pre emption Act, was declared to be repugnant to the Injunctions of Islam but no pre‑emption law was enacted, which was either pending or the same had been dismissed for want of law of pre‑emption. The present suit is covered by section 34 of the said Act, which provides that in any such pre -emption suit which had been instituted under the Punjab Pre‑emption Act, 1913, if at any stage a decree was passed in favour of the pre -emptors/plaintiffs, further proceedings could be taken and decree passed under the same Act. Admittedly in this suit no decree was passed in favour of the appellant pre‑emptors before 31‑7‑1986, therefore, this suit was not maintainable. This view finds support from judgment reported as Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR page 445.

7. For the foregoing reasons the application (C.M. No.1/C‑92) moved by the respondent is accepted. The appeal is dismissed with no order as to costs. H.B.T./A‑691/L Appeal dismissed.