1989 PLP 1683 (CLC)
SULTAN MUHAMMAD and 2 others‑‑Petitioners Versus Mst. NAJABAT SULTAN and 6 others‑‑Respondents
| Citation | 1989 PLP 1683 (CLC) |
| Forum / Court | Peshawar |
| Bench Members | Raza Ahmad Khan,J |
| Parties | SULTAN MUHAMMAD and 2 others‑‑Petitioners Versus Mst. NAJABAT SULTAN and 6 others‑‑Respondents |
| Primary Law | North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑‑ |
Q1: What are the key laws and sections cited in 1989 PLP 1683 (CLC)?
This judgment primarily cites: North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1989 PLP 1683 (CLC)?
The case was heard and decided by the Peshawar bench comprising: Raza Ahmad Khan,J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1989 PLP 1683 (CLC) (SULTAN MUHAMMAD and 2 others‑‑Petitioners Versus Mst. NAJABAT SULTAN and 6 others‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Headnotes / Summary
‑‑‑S. 12‑‑Suit for pre‑emption‑‑No decree having been passed before 31‑7‑1986‑ The suit was dismissed in view of Sardar Ali's case reported as PLD 1988 SC 287 as also in Ghulam Qadir's case PLD 1988 SC 701‑‑Talabs‑‑Dismissal of suit for want of exercise of Talabs‑‑Plaintiffs contention that in plaint he had taken the ground of `Talab' and that he should have been allowed to prove the same, repelled‑‑Record showed that paragraph of pleading referred to by plaintiff was highly vague and no plea of Talab had been taken either before First Appellate Court or in grounds of revision‑‑Point raised on behalf of plaintiff before lower forums, in fact, was that the law laid down by Supreme Court regarding `Talabs' was not applicable to the pending cases‑‑Factum of `Talabs' unless exercised in conformity with Injunctions of Islam, no decree could be granted on that basis‑ Where case was instituted and not decided in favour of pre‑emptor by way of granting him decree before 31‑7‑1986, no question of `Talabs' could arise inasmuch as suit having been instituted under the old law was hit by the judgments of Supreme Court in Said Kamal Shah's case reported as PLD 1986 SC 360 and Sardar Ali's case PLD 1988 SC
287. Muhammad Ayub Khattak for the Petitioners.
Judgment & Decree
3. Both the learned lower Courts have arrived at a conclusion of dismissing the suit on the common ground that since no decree was passed before 31‑7‑1986, the suit would stand dismissed in the light of the judgment of the Supreme Court in the case Sardar Ali and others v. Muhammad Ali and others reported in PLD 1988 SC 287, as also in the case of Ghulam Qadir v. Nawab Din reported in PLD 1988 SC
701. The principle thus laid down has been reiterated in subsequent case of Mian Ghulam Ali v. Ali Nawaz Khan reported in 1989 SCMR 276. 3‑A. The learned counsel on behalf of the petitioners contended that para. 4 of the plaint does indicate that the requirement of law of pre‑emption, as it stands today, was complied with by the plaintiffs and they should have been given an opportunity to prove the same, and both the learned lower Courts have failed to apply their mind to this aspect of the case.
4. A reference to the record, however, reveals that the said paragraph 4 of the plaint is highly vague and no such plea has been taken either in the grounds of revision or before the learned Appellate Court and in fact the point raised on behalf of the petitioner before the lower forums was that the law laid down by the Supreme Court regarding '"TALABS" was not applicable to the pending cases.
5. Besides, the answer to the point raised by the learned counsel is also available in the decision given in the case of Ghulam Qadir v. Nawab Din reported in PLD 1988 SC 701 wherein it has been observed:‑ "In some cases which have come to our notice, the learned counsel tried to make out case for "Talabs" by relying on such phrases in the plaints, which were used to‑‑be filed, under the old law, like so as to canvass that the plaintiff should be permitted to elaborate such assertions in the context of requirements of the Islamic Law. For obvious reasons such a position would be untenable."
6. Again unless `TALABS' are exercised in conformity with the modelity prescribed by the law and is in accordance with the Islamic Jurisprudence, no decree can be granted in favour of the plaintiff‑pre‑emptor. The decision in case A of Barkat Ali v. Khan Muhammad and another reported in 1988 SCMR 1800(1) lends support to the view, I have taken of the matter. In the said case it is held:‑‑ "In this petition for special leave to appeal which arises out of a pre emption suit, so far no decree has been passed in favour of the petitioner, who is. a pre‑emptor. There is no assertion in the plaint that the "Talabs" were made in the mode accepted by Islamic Jurisprudence.That being so, no decree can now be passed in his favour".
7. I have given serious consideration to the submission made by the learned counsel and bearing in mind the law laid down in the above noted cases, the inescapable conclusion I have arrived at is that in cases instituted and not decided in favour of the pre‑emptors by way of granting him decree before the date of 31st of July, 1986, no question of Islamic "TALABS" could arise inasmuch as the suits were instituted under the law which were hit by the judgments of the Supreme Court in cases of Said Kamal Shah PLD 1986 SC 360 and Sardar Ali PLD 1988 SC 287.
8. Resultantly, I find this revision petition bereft of any merits and dismiss it hereby in limine. AA./796/P Revision dismissed.