2006 PLP 897 (SCMR)

MUNIR A. SHEIKH, J.

The suit filed by the petitioner to pre-empt the sale was dismissed by the trial Court before 31-7-1986, the date on which the rule laid down in the case of Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 became operative. The appeal filed by him against the said judgment of dismissal of his suit was pending before the First Appellate Court at the relevant time which was dismissed on the ground that in view of rule laid down in the case of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287, the suit of the petitioner could not be decreed after the said date i.e. 31-7-1986. Second appeal tiled by him before the High Court has also been dismissed through the impugned judgment dated 17-4-2000 by following the rule laid down by this Court in the case of Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445, against which leave is sought.

2. Learned counsel for the petitioner submitted that since section 34(2) of the Punjab Pre-emption Act, 1991 was interpreted by this Court in the case of Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 in which it was held that the expression "judgments and decrees" used in the said provision did not necessarily mean decree in favour of the pre-emptor of pre-emption and the same would also include the decision of the case of dismissal of the suit which also was a decree, therefore, the proceedings in appeal pending against said judgment and decree of dismissal of suit were also to be decided according to the old Pre-emption Act, 1913. This case was decided on 2-12-1991 by a Division Bench of this Court.

3. Subsequently, a similar question came up for consideration before the Full Bench of five learned Judges of this Court in a case from North-West Frontier Province, wherein the interpretation of similar provisions contained in section 35(2) of the North-West Frontier Province Pre-emption Act (X of 1987) was made. It was held that the expression "judgments and decrees" used in this provision of the Act means judgment and decree passed in favour of the plaintiff of pre-emption and not dismissal of the suit against which further remedies were to be followed and decided according to the old Pre-emption Act, 1913.

4. In our view, the rule laid down in this judgment of larger Bench was rightly followed. Learned counsel for the petitioner submitted that in the relevant provisions of the North-West Frontier Province Pre-emption Act, the word "final" had also been used with the expression `judgment and decree', therefore, the interpretation of the said provision of law in the later judgment would not be applicable to the case in hand and the interpretation of the Punjab Pre-emption Act made in earlier judgment was still applicable.

5. The argument in our view is not correct. Mere addition of the word "final" in the N.-W.F.P. Pre-emption Act, with the words "judgments and decrees" would not make any difference, for if the suit A had been dismissed under the old law which had been declared to be repugnant to the Injunctions of Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.), the same by no stretch of imagination can be held to be intended to be saved for further remedies.

6. For the foregoing reasons, we do not find any merits in this petition, which is accordingly, dismissed and leave refused. S.A.K./G-189/SC??????????????????????????????????????????????????????????????????????????????? Leave refused.