1994 PLP 308 (MLD)

This revision petition arises out of a pre-emption suit and was against an order of learned Additional District Judge, Sheikhupura dated 16-2-1991 by which a miscellaneous application for revival of an appeal for decision on merits after setting aside of the judgment dismissing the pre-emption suit was dismissed by him. Necessary facts giving rise to the revision petition were briefly these:-- Respondents purchased 334 Kanals of agricultural land situate at Mauza Easan of Tehsil Ferozewala in District Sheikhupura for a sum of Rs.1,30,000 vide a sale-deed registered on 15-7-1970. Petitioners alongwith a few others claimed pre-emption in respect of this sale. Pre-emption suit was instituted on 19-1-1971. Superior right of pre-emption was asserted on the grounds of being co-owners in joint Khata, owners of land in Patti, revenue estate and village Shamlat. Vendees contested the suit, on 28-9-1986, the trial Court decreed pre -emption suit in favour of the petitioners subject to payment of the stated sale price by a specified date in the decree. A rival pre-emption suit was dismissed. Vendees preferred an appeal. On 12-7-1990, appeal was allowed by learned Additional District Judge, Sheikhupura on the sole ground that no decree in the pre-emption suit could have been passed on or after 31-7-1986, the target date fixed in the case of Malik Said Kamal Shah. Consequently, the pre- emption suit instituted by the petitioners was dismissed on this score. On 15-9-1990, petitioners presented an application under section 36 of Punjab Ordinance XVIII of 1990 for revival of proceedings in the appeal for their decision on merits in accordance with the new Legislation. On 16-2-1991, learned Additional District Judge dismissed the application on the short score of above Ordinance having lapsed. He observed that "the petitioners, ii advised, may move application under the latest law if any". It is this order that is sought to be revised at the instance of the petitioners. After the judgments of the Supreme Court in case of Malik Said Kamal Shah PLD 1986 SC 360 and Sardar Ali and others PLD 1988 SC 287, the Punjab Legislature issued a chain of Ordinances on the subject of pre-emption law which eventually culminated in Punjab Pre-emption Act, 1991 on 6th April, 1991. Except for Punjab Ordinance V of 1990 and Ordinance XII of 1990, other Ordinances and the Act contained a "Saving" subject to a Proviso for revival of dismissed pre-emption suits instituted or pending during the interregnum from 1st day of August, 1986 and 28th March, 1990 if the right of pre-emption claimed in them was available under the new raw. Each succeeding Ordinance took effect on the day its predecessor Ordinance was deemed to have been repealed under Article 128 of the Constitution, except for two specified sections which were deemed to have taken effect differently. Thus there was an unbroken continuity in the life of Ordinances. Therefore, the point which weighed with the learned Court below for dismissing the miscellaneous application for revival of proceedings was not sound in law. Had this been the only ground, I would have immediately allowed the civil revision and remanded the matter to the learned Court below for deciding of it afresh in accordance with the existing law of pre-emption. But, there was an un-surmountable serious hurdle in way of the petitioners which it was difficult for them to cross over. Revival of proceedings was possible only, if in the plaint of dismissed pre-emption suit instituted or pending between 1st day of August, 1986 and 28th March, 1990 the right of pre-emption was claimed as was available under the Punjab Pre-emption Ordinance/Punjab Pre-emption Act. Right for revival of proceedings was further hedged in if the Pre-emptor established that he had made Talb-i-Ishhad in presence of two truthful witnesses. No doubt, pre-emption was claimed on the basis of co-ownership and this ground was also available for pre-emption under the new law. However, performance of Talabs was an essential component of right of pre- emption in the new law. Similarly, the right of pre-emption was exercisable only in case of Zaroorat or to avoid Zarar. As far the dismissed pre-emption suits, which were instituted or pending between 1st day of August, 1986 and 28th March, 1990, the Legislature made a clear exception in regard to performance of three Talabs and enacted that performance of Talb-i-Ishhad in presence of two truthful witnesses shall be sufficient. Obviously, performance of Talb-i-Ishhad in the above category of pre-emption suits was a sine qua non for their revival and retrial on merits in terms of new law. A glance at the plaint of the pre-emption suit would clearly reveal absence of an averment about Zaroorat or avoidance of Zarar for exercising pre-emption in respect of the sale transaction. Similarly, performance of Talb-i-Ishhad was conspicuous in its absence in plaint of the pre-emption suit. Therefore, essentials for! exercise of right of pre-emption under the new law being absent in the plaint itself, the revival of proceedings would be a mere exercise in futility. Petitioners could establish performance of Talb-i-Ishhad, if they had first pleaded it in the plaint. As said above, there was no averment about it in the plaint. No evidence of it was led in the trial Court either. The judgment of the trial Court was also silent on it. Without first allowing an amendment to the plaint of pre-emption suit for incorporating plea of Talb-i-Ishhad in the manner provided in the Saving-Clause and also allowing a further opportunity for producing evidence on the plea, there was no earthly chance for the petitioners to succeed. In my view, for the purpose of deciding the application for revival of proceedings, only the plaint in its existing form was to be looked at. Revival could be had only, if the plaint conformed to the requirements of present law of pre-emption 9 and in no other circumstances. Any amendment of pleading at this stage had the strong potential of promoting falsehood. I expressed a similar view in Muhammad Ishaq and 2 others v. District Judge, Sargodha and 3 others (PLD 1993 Lah. 456). Para.7 of the plaint in the suit did not conform to the requirement of performance of Talb-i-Ishhad. It was a usual clause found in almost every plaint of the pre-emption suit for showing a cause of action to file the suit. Apart from the deficiencies in the plaint pointed out above, the respondents had objected to the maintainability of the revision petition on account of bar of limitation. It was submitted that revival application was dismissed on 16-2-1991. An application for certified copy of the order was filed on 15-2-1993. Certified copy was prepared and delivered to the petitioners on the same day. Other documents filed alongwith the revision petition were already available with the petitioners. Nonetheless, revision petition was filed in this Court on 5-4-1993. An application for condonation of delayed filing of the revision petition was also submitted. It was supported by an affidavit sworn by one of the petitioners. Prior to the amendment in section 115, Civil P.C. prescribing a period of 90 days for filing of revision petitions, neither the C.P.C. nor the Limitation Act had prescribed any period of limitation for exercise of revisional jurisdiction. Despite its absence, rule of un-prescribed period of 90 days was followed and insisted upon by the Court. Beyond that period, the Court was required to be satisfied about the reasons for delayed approach to it. In the instant case, reason for delay was unsatisfactory and, therefore, could not be lightly overlooked. Delay caused by the petitioners created an equity in favour of the vendees of which they should not be deprived. Having regard to the facts and circumstances of the case, the delay beyond normal period of 90 days was not condonable. The petitioners were expected to be vigilant. The circumstance that law of pre-emption suffered from some fluidity in Courts was hardly a good ground to advance for condoning the delay of a little over one year. For the aforestated grounds, it shall neither be legal nor just to take up this old matter to the severe inconvenience of the vendees of the land purchased by them as far back as 1970. I would, therefore, dismiss the revision petition but shall leave the parties to bear their own costs in this Court. AA./M-1264/L Revision dismissed.