1993 PLP 1057 (CLC)

‑‑‑‑S. 6‑‑‑Pre‑emption suit‑‑‑Right of pre‑emption whether was being enforced on account of Zarar and Zaroorat‑‑‑Trial Court had given no finding on question of Zarar or Zaroorat while dismissing suit‑‑‑Such ground would be available to defendant while submitting written statement‑‑‑Court would decide such question in accordance with law. Sh. Azeem Ashraf for Appellant. Ch. Naseer Ahmad for Respondents.. Date of hearing: 21st February, 1993. MUNIR A. SHAIKH, J.‑‑This appeal is directed against the judgment and decree dated 6th of October, 1992 through which the suit filed by the appellant for possession of land through pre‑emption on the ground of ownership in the same Khata, has been dismissed. 2. ‑ The sale which was sought to be pre‑empted, was made through registered sale deed dated 30th of March, 1988 which was followed by a Mutation No.196 sanctioned on 5th of April, 1988. The suit was filed on 8th of January, 1989. On the said date, no law of pre‑emption had yet been promulgated. This suit remained pending till 6th of October, 1992 when it was dismissed. On 6th of April, 1991 the Punjab Pre‑emption Act, IX of 1991 was enforced. Under section 35 of this Act it was provided that if any suit of pre emption which was instituted between 1st of August, 1986 and 28th of March, 1990, both days inclusive, was pending and dismissed, the same shall be revived and decided in accordance with the said Act provided the right of pre‑emption had been claimed on any of the grounds available under the said Act. Admittedly; the right of pre‑emption on the ground of co‑ownership has been recognized by this Act. In the plaint the appellant had also made averment, that requirement regarding Talb‑i‑Muwathibat and Talb‑i‑Ishhad, had already been fulfilled.

3. Learned counsel for the appellant has argued that instead of dismissing the suit on 6th of October, 1992 the same should have been decided on merits because had the same been dismissed it was required to be revived. Learned counsel for the respondent has submitted that only those suits could be decided after revival under the provisions of the said Act which had been dismissed but were pending between 1st of August, 1986 and 28th of March, 1990 as such since the appellant's suit was not dismissed during the said period and it remained pending even after 30th of March, 1990, therefore, it could not be decided on merits. He has relied upon Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129).

4. We are afraid in our opinion the argument is plainly unsound. Section 35 of the Act was enacted .with the clear intention of deciding all those suits which were instituted on 1st of August, 1986 onward; provided the right of pre emption had been claimed as was available, under the said Punjab Pre‑emption Act. It does not stand to reason that a suit which had already been dismissed, could be revived for decision in accordance with the said Act but the one still pending could not be decided under the said Act.

5. Learned counsel for the respondent then argued that requirement of one of the Talbs through post had not been fulfilled and no averment was also made that the right of pre‑emption was being enforced on account of Zarar and Zaroorat as required under, subsection (2) of section 6 of the said Act.

6. The plaint has been gone into, in which an averment has been made that requirements regarding Talb of both kinds have been fulfilled. It is a matter of proof through evidence whether the said requirements had in fact been fulfilled, therefore, the first limb of argument has no force. As regard mention of Zarar and Zaroorat in the plaint.itself, we note that no finding has been given by the trial Court and the suit has not been dismissed on that ground. This ground if available to the respondent he may raise the same in the written statement the learned trial Court shall decide it in accordance with law.

7. For the foregoing reasons, this appeal is accepted, judgment and decree dated 6th of October, 1992 is set aside. The case is remanded to the trial Court to decide the same on merits in accordance with law. There will be no order as to costs. AA./N‑131/L Case remanded.