2006 PLP 698 (SCMR)

JAVED IQBAL, J.

This petition for leave to appeal is directed against the judgment, dated 21-1-2002 passed by learned Lahore High Court, Lahore, whereby revision petition preferred on behalf of petitioner has been dismissed and judgment, dated 17-2-1991 passed by learned Additional District Judge, Bhakkar decreeing the suit of respondent has been kept intact.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "suit of respondent No.1 as plaintiff/pre-emptor was initially decreed on 6-12-1982 by learned Civil Judge, Bhakkar. The judgment and decree of the learned Civil Judge was set aside by the learned Additional District Judge, Bhakkar on 25-9-1983 and the case was remanded back to the learned trial Court for afresh decision. In remand proceedings, the learned Civil Judge on 10-4-1984 framed 11 issues. The learned Civil Judge dismissed the suit through his judgment and decree dated 19-1-1987. Appeal filed by respondent No.1 was accepted by the learned Additional District Judge, Bhakkar who through his judgment and decree dated 17-2-1991 set aside the judgment and decree passed by the learned Civil Judge and decreed the suit of respondent No.1." The petitioner being aggrieved filed a revision petition which has been dismissed.

3. Heard Mian Ghulam Rasool, learned Advocate Supreme r9urt on behalf of petitioner at length.

4. We have carefully examined the record of the ease made available and perused the judgment impugned. The prime contention of learned Advocate Supreme Court on behalf of petitioner is that since no decree was in existence in favour of respondent No.1 on the cut off date i.e. 31-7-1987 therefore, in view of the dictum laid down by this Court in case Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 and Sardar All v. Muhammad Ali PLD 1988 SC 287 no decree could have been passed against respondent No.l by the learned Additional District Judge on 17-2-1991. The dictum as laid down in Said Kamal's case (supra) would have no bearing on the decree which was admittedly in existence on 6-12-1982 whereas the cut off date in Said Kamal's case A (supra) is 31-7-1987. In this regard we are also fortified by the taw as Laid down in case Nazir Begum v. Fazal Dad 1999 SCMR 210, Rozi Khan v. Karim Shah 1992 SCMR 445, Muhammad Shafi v. Muhammad Hussain 2001 SCMR

827. The determination of learned Single Judge in Chambers in this context is reproduced hereinbelow for ready reference: "(4) I have considered the contentions of the learned counsel for the parties and have also examined the record. The substantial question arising in this case is identical to the question arising before the Honourable Supreme Court of Pakistan in the case of Nazir Begum v. Fazal Dad 1999 SCMR

210. The Honourable Supreme Court of Pakistan discussed the entire law on the subject as decided in the case of Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Sardar Ali v. Muhammad Ali PLD 1988 SC 286, Bahader Khan v. Muhammad Yousaf 1992 SCMR 2117 and Ghulam Rasool v. Faiz Bukhsh 1992 SCMR 1328 and held that a decree of possession through pre-emption, once passed in favour of a plaintiff/pre-emptor, falls within the rule settled in Said Kamal's case, even if such a decree had been set aside by the Appellate Court prior to 31-7-1987 and the suit was pending for re-decision before the trial Court and that a decree in such a suit can competently be passed in accordance with the provisions of Punjab Pre-emption Act, 1913, as if the same had not been repealed." The conclusion as arrived at by the learned Single Judge in Chambers is strictly in consonance with law as laid down by this Court on various occasions and does not warrant any interference. It is worth-mentioning that petition is barred by 24 days and no plausible justification could be put forth, on the basis whereof the delay could be condoned. The petition being meritless and barred by time is dismissed. M.H./F-29/S??????????????????????????????????????????????????????????????????????????????????????? Leave refused.