1995 PLP 5 (MLD)

‑‑‑‑S.6 (2)‑‑‑Constitution of Pakistan (1973), Art.203‑D‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Suit for pre‑emption ‑‑‑Summary rejection of plaint on account of absence of averment about existence of "Zaroorat" or avoidance of "Zarar" for exercise of pre‑emption ‑‑‑Validity‑‑‑Provision of S.6(2), Punjab Pre‑emption Act, 1991, which embodied existence of "Zaroorat" and avoidance of "Zarar" as an essential element in 'a suit for pre‑emption was repugnant to Injunctions of Islam‑‑‑Prior to date of declaration of said provisions to be repugnant provisions of S.6(2), Punjab Pre‑emption Act, 1994 was an existing law and also enforceable provision of law, therefore, statement about existence of "Zaroorat" and avoidance of "Zarar" in plaint was necessary and its omission might prove fatal to the maintainability of pre‑eruption suit‑‑‑Plaintiff on the date of institution of suit for pre‑emption viz. 26‑1‑1992, was obliged to aver existence of "Zaroorat" or avoidance of "Zarar" for exercise of right of pre emption by him‑‑‑Plaintiff, however, was not precluded to apply for amendment of plaint for incorporation of statement about "Zaroorat" or avoidance of "Zarar" in it‑‑‑Plaintiffs right to apply for amendment of plaint and exercise of jurisdiction by Court to make order on request for amendment of plaint could not be foreclosed at the initial stage of proceeding‑‑‑Summary rejection of plaint was not an appropriate exercise of jurisdiction when issues had already been settled on merits for determination of pre‑emption suit‑‑ Plaint can although be rejected at any time of the trial of suit, settlement of issues being no bar for exercise of jurisdiction by Court yet in circumstances of the case ordinary rule for trial on merits could not be by‑passed‑‑ Plaint was, thus, rightly restored by Appellate Court for decision on merits. Haji Rana Muhammad Bashir Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 rel. Fazal Elahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85; Muhammad Iltaf v. Muhammad Nawaz 1992 MLD 1207; Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879; Rab Nawaz v. Mehmood Khan 1993 SCMR 2318 and Abdul Malik v. Muhammad Iqbal and another 1994 CLC 788 ref. M. Yaqoob Chaudhry, Advocate. This revision petition was from an order of Additional District Judge, Kasur, dated 19‑4‑1994 by which order of the trial Court for summary rejection of the plaint under Order VII, Rule 11, Civil P.C. was reversed and the pre-emption suit was remanded for its trial on merits in accordance with law. Facts bearing on the decision in revision briefly set out were these:‑‑ Saleem Beg and his three brothers jointly owned 23 Kanals, 16 Marlas of land at Mauza Loger Jhuggian in Tehsil and District Kasur. Vide a registered deed, dated 19‑12‑1991, they sold above land to Muhammad Ali for a sum of Rs.3,50,

000. Muhammad Hussain plaintiff claimed pre‑emption in respect of the sale. Superior right of pre‑emption was asserted on ground of co -ownership. Reference to performance of necessary Talabs was made in the plaint of the pre‑emption suit. It was instituted on 26‑1‑1992. Vendee defendant contested the suit. He filed his written statement. Trial Court settled necessary issues for determination. Later, the defendant submitted a miscellaneous petition under Order VII, Rule 11, Civil P.C. for summary rejection of the plaint on account of absence of an averment about existence of Zaroorat or avoidance of Zarar for exercise of pre‑emption in it. Case of Fazal Elahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 (Lahore) was referred to in para. 2 of the miscellaneous petition for support. Plaintiff contested the application. On 11‑7‑1993, the trial Court sustained the objection to the maintainability of pre‑emption suit and rejected the plaint without trial under Order VII, Rule 11, Civil P.C. Plaintiff preferred an appeal. It was allowed as stated above. Thereupon, this petition in revision was filed by the vendee‑defendant. At the hearing, learned counsel relied upon cases in Muhammad Iltaf v. Muhammad Nawaz 1992 MLD 1207 (Lahore), Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879 (Lahore), Fazal Elahi and 2 others v. District Judge, Attock and 3 others‑1993 CLC 85 (Lahore), Rab Nawaz v. Mehmood Khan 1993 SCMR 2318 and argued that absence of an express averment in the plaint about existence of Zaroorat or avoidance of Zarar for exercising pre‑emption was fatal to it. As regards the decision of the Supreme Court in case of Haji Rana Muhammad Bashir Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1, learned counsel argued that it shall take effect on 31st of December, 1993 and had no retrospective operation on the cases already filed which were required to be dealt with in accordance with the then prevailing law. In this behalf, learned counsel referred to Article 203‑D of the Constitution of Pakistan and urged that on appeal from the judgment o Federal Shariat Court to the Shariat Appellate Bench of the Supreme Court, the operation of the judgment of the Federal Shariat Court was suspended to take effect only on the disposal of such appeal and a date specified by the Appellate Bench for enforcement of its judgment. Decision in case of Haji Rana Muhammad Bashir Khan took effect on 31st of December 1993. Prior to it, section 6(2) of Punjab Pre‑emption Act, 1991 was an existing and also enforceable provision of law. In terms of decided cases referred to above by the learned counsel, a statement about existence of Zaroorat or avoidance of Zarar in the plaint was necessary. Its omission may prove fatal to the maintainability of pre‑emption suit. Referring to the judgment in case of Abdul Malik v. Muhammad Iqbal and another 1994 CLC 788, learned counsel submitted that it did not take notice of Article 203‑D of the Constitution of Pakistan as regards the date of enforcement of the judgment of Shariat Appellate Bench in case of an appeal to it. The argument was correct to the extent that the judgment of this Court in case of Abdul Malik had not adverted to the effect of Article 203‑D of the Constitution of Pakistan qua the date of enforcement of the judgment given in appeal by Shariat Appellate Bench of the Supreme Court. Unlike rule 5 of Order XLI, Civil P.C., Article 203‑D of the Constitution of Pakistan provided that filing of appeal from the judgment of the Federal Shariat Court suspended its operation qua the enforcement date specified in it till the disposal of the appeal by the Shariat Appellate Bench of the Supreme Court and a date specified for enforcement in its judgment. In the existing state of law, on the date of institution of pre‑emption suit, plaintiff was obliged to aver existence of Zaroorat or avoidance of Zarar for exercise of right of pre‑emption by him. There was no clear statement on them in the plaint. Nonetheless, plaintiff was not precluded to apply for amendment to the plaint for incorporation of a statement about Zaroorat or avoidance of Zarar in it. Plaintiffs right to apply for amendment to the plaint and exercise of jurisdiction by the Court to make an order on the request for amendment could not be foreclosed at this stage of the proceedings. As said above, issues had already been settled on merits for determination of the pre‑emption suit. Therefore, it was not an appropriate exercise of jurisdiction to order summary rejection of the plaint without its trial on merits in accordance with law. It was correct the plaint could be rejected at any time of the trial of the suit and settlement of issues was not a bar for exercise of jurisdiction by the Court in this regard. Nonetheless, in the facts and circumstances of the present case, ordinary rule for trial on merits could not be by‑passed. Upon this view, in exercise of discretionary jurisdiction, I was reluctant to interfere with an order of the Court below directing trial of the suit on merits. Therefore, revision petition is dismissed in limine. AA./M‑1833/L Revision dismissed.