2006 PLP 1395 (MLD)

MAULVI ANWAR UL HAQ, J.

This judgment shall decide C.R. No. 685 of 1991 and C.R. No. 686 of 1991 as common questions are involved.

2. In the matter of C.R. No.685/91, vide Civil Court decree, dated 10-1-1989 the respondents purchased land measuring 307 Kanals, 15 Marlas while in the matter of C.K. No.686/91 they purchased land measuring 153 Kanals, 16 Marlas vide Mutation No.8 attested on 23-10-1988. On 21-10-1989 the petitioner filed two suits for possession by pre-emption. She claimed to be a Shafi Jar and Khalit and pleaded that upon acquiring knowledge of sales she made Table-i-Muwathibat and Talb-I-Ishhad. The respondents were duly served and they filed written statements denying the said facts. The suits were dismissed as not maintainable on 11-7-1991 as Zarar and Zaroorat were not mentioned in the plaints. First appeals filed by the petitioner were dismissed by a learned Additional District Judge-II, Dera Ghazi Khan, on 23-9-1991.

3. Learned counsel for the petitioner contends that in view of the dictum of the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government r4 Punjab Province, Lahore (PLD 1994 SC 1), there is no necessity of mentioning the said Zarar and Zaroorat in the plaints. He draws my attention to an earlier judgment of this Court in the case of Mst. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lahore 200) (in C.R. No.1119/93) and to an order of the Hon'ble Supreme Court of Pakistan passed, inter alia, in Civil Appeal No.1336 of 1996 on 6-12-2000. Learned counsvi for the respondent has not much to say to oppose the said contention of the learned counsel for the petitioner.

4. I have already narrated above the material contents of the plaint. The right claimed is available under the new dispensation enacted pursuant to the judgment in the case of Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360). The talbs have been sufficiently pleaded. Needless to state that the matter would be governed by section 35(2) of the Punjab Pre-emption Act, 1991, in any case.

5. Now C.R. No.1119/93 was decided by this Court upholding the dismissal of the suits for he precise reason that notwithstanding the provision of section 35(2) of the Punjab Pre-emption Act, 1991, the plaint required express mention of Zarar and Zaroorat. Vide order, dated6-12-2000 in Civil Appeal No.1336 of 1996 filed against the saw judgment of this Court, the said appeal was allowed by the Hon'ble Supreme Court of Pakistan and the said judgment was set aside and the case was remanded to the trial Court for decision.

6. Both the civil revisions are accordingly allowed. The impugned judgments and decrees are set aside. The result. would be that both the suits shall be deemed to be pending in the Court of Mr. Muhammad Aril Rana, Civil Judge 1st Class, Taunsa, before whom the parties shall appear on 2-6-2006. The learned trial Court shall requisition the records and proceed further to decide the suit on their merits after framing issues and recording evidence of the parties. No orders as to costs.

7. A copy of this judgment be immediately remitted to the said learned Civil Judge. H.B.T./M-303/L????????????????????????????????????????????????????????????????????????????????? Petition allowed.