1988 PLP 863 (CLC)

Muhammad Nasrullah Waraich for Respondent. Date of hearing: 21st February, 1988. The respondent filed a suit for possession of the suit land through pre‑emption which was contested by the appellant. The following issues were framed:‑ (1) Whether the suit is hit by the provisions of Martial Law Regulation No.64? If so, with what effect? OPP. (2) Whether the plaintiff has got a superior right of pre‑emption? OPD. (3) Whether a sum of Rs.6,400 was fixed in good faith or paid as the sale price? OPD. (4) What is the market value? OP Parties. (5) Whether the plaintiff is estopped from suing? OPD. (6) Whether the suit has been brought by the plaintiff collusively and benamai for the benefit of others? If so, with what effect? O.P.D. (7) Whether the suit is bad for partial pre‑emption? OPD. (8) Relief . The learned Civil Judge, Gujrat, decreed the suit vide judgment and decree dated 23‑10‑1969. The appellant filed an appeal and the learned Additional District Judge, Gujrat, vide order dated 29‑5‑1970 remanded the case to the learned trial Court for determination of market price. The findings of the learned trial Court except on issues relating to the price and market price were, however, affirmed. The appellant has now challenged the judgments and decrees of the learned Court below. I have perused the record and have heard arguments.

2. The findings of the learned Courts below on issues Nos.2, 5, 6 and 7 are not challenged before me. The learned counsel for the respondent has conceded issue No.3 and has accepted the payment of price of Rs.6,

400. Accordingly issue No.3 is decided in favour of the appellant. Issue No.4 as a consequence becomes redundant and requires no decision.

3. Therefore, it is only issue No.l which has to be dealt with. The respondent is not an owner in the estate in which the land in dispute is situated. The objection is that under Martial Law Regulation No.64 he could not purchase the land in dispute and, therefore, cannot pre‑empt the same. A reference has been made to Notification No.ASR‑II‑182/70/1126‑LC, dated 20‑2‑1970. The learned appellate Court has interpretted that under this notification the respondent has a right to obtain a decree for pre‑emption and his right is not affected by M.L.R.

64. The learned counsel for the appellant has argued that the said notification has no retrospective effect and it does not apply to sales made and the suits instituted before the issuance of the same. The sale in dispute took place on 23‑8‑1967 and this suit was filed on 30‑7‑1968. If the argument of the learned counsel for the appellant were to carry weight the said notification will not benefit the respondent. However, a reading of this notification will show that it saves the "holder of a pre‑emption decree granted by a competent Court" from the purview of M.L.R.

64. This notification speaks of a decree and not of a decree which may be passed in future or of a decree which had already been passed. That in itself shows that the notification has retrospective effect and it saves not only the decree which may be passed in future but also saves decrees passed prior to the issuance of the said notification. Therefore, under the said notification the decree in favour of the respondent is saved. The learned counsel for the appellant has referred to Messrs Haider Automobile Limited v. Pakistan P L D 1969 S C

623. I need not discuss this case because it relates to a notification issued under section 8 of the Punjab Pre‑emption Act and not to a notification issued under M.L.R.

64. The learned counsel for the respondent has referred to Allah Bux and another v. Muhammad Riaz P L D 1974 Lah. 268 in which it was held that after the publication of the said notification, dated 20‑2‑1970, the Civil Courts have no jurisdiction to go into the question whether a pre‑emption decree if passed would go against the provisions of M.L.R.

64. This also means that the notification would apply even to pending cases and we need not go into the question as to whether the decree will be hit by the provisions of MLR 64 or not. As already pointed out above, the notification, dated 20‑2‑1970 in itself is clear and admits of only one interpretation' that a decree of pre‑emption whether passed before or after they issuance of the said notification will not be hit by the provisions contained in MLR

64. Therefore, the suit of the respondent is not hit or barred by the provisions contained in MLR 64 and the right of pre‑emption of the respondent is enforceable. The decision of the, learned Courts below on issue No.l is affirmed.

4. The judgment and decree of the learned appellate Court are set aside so far as the same relate to issues Nos.3 and 4 and the judgment and decree of the learned trial Court are maintained with the modification that the decree now will be on payment of Rs.6,400 and not Rs.5,516.50. The respondent should deposit the pre‑emption money less the amount already deposited by him on or before 17‑3‑1988, failing which his suit shall stand dismissed with costs. In the event of the deposit of the pre‑emption money within time the parties shall bear their own costs. The appeal is disposed of accordingly. A.A./F‑64/L Order accordingly.