1993 PLP 1083 (SCMR)

WALI MUHAMMAD KHAN, J.‑‑‑The instant appeal, through (cave of the Court, is directed against the judgment dated 15‑5‑1988 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench. whereby the revision petition bearing No. 156‑13/88 riled by Ghulam Hamdani, appellant herein, against the judgment of the trial Court dated 27‑1U‑1987 whereby suit for possession through pre‑emption was dismissed the judgment of the appellate Court dated 22‑11‑1987 dismissing his appeal against the judgment of the trial Court, was dismissed. The leave granting order reads as follows:‑ "In this appeal the main question arising for consideration is whether a suit filed to enforce a right of pre‑emption after 31‑7‑1986 i.e. after the date on which the decision of this Court in Government of N: W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) came into effect (whereby the provisions of section 15, inter alia, of the Punjab Pre‑emption ~ Act, 1913 ceased to have effect) was maintainable despite the disappearance of section 15 from the statute book? A comparable provision has been provided for in Punjab Pre‑emption Ordinance, 1990 but this Ordinance was promulgated in March 1990. The High Court, in these circumstances, has held that during this interregnum it was not possible for the Courts to enfore the Islamic Law of Shufa without any legislative support and has, on this view of the matter, dismissed the suit for pre‑emption. Before us, it has been contended that even during the period (31‑7‑1986 to March 1990) when there was no statutory provision of law under which the right of pre‑emption could be enforced this vacuum stood filled up by the Islamic law of pre‑emption. The appeal was heard on 12‑8‑1990 by us and judgment was reserved But we now feel that in view of importance of the question involved and its effect on the other cases, in similar situations, this appeal should be heard by a larger Bench. We would, therefore, request the Hon. Chief Justice to constitute a larger Bench for this purpose. The matter is, accordingly, submitted to Hon'ble C.J. for appropriate orders." The facts of the case, more or less undisputed, are that Muhammad Iqbal and others, respondents herein, purchased the suit land measuring 41 Kanals 3 Marlas comprised in Kharsa No. 667 situated in village Ochari Tehsil Jand vide Mutation No. 298 from its owner, namely, Wazeer Muhammad which gave rise to the filing of pre‑emption suit by Ghulam Hamdani plaintiff/appellant on 5‑3‑1987 on the ground of ownership in contiguous property and. participation in immunities and appendages. The same was contested by the defendants/respondents through filing a written statement and keeping in view the pleadings of the parties, necessary issues in the case were framed. However, the learned trial Court, vide its judgment and decree dated 27‑10‑1987, after hearing the arguments of the learned counsel for the parties, rejected the plaint under Order 7, rule 11 on the ground that the Punjab Pre‑emption Act does not recognize the right of pre‑emption based on contiguity and thus, no cause of action is disclosed in the plaint. The appeal filed against it by the appellant was dismissed vide judgment dated 22‑11‑1987 and the revision petition filed by the appellant also met the same fate vide the impugned judgment. Hence the instant appeal through leave of the Court. We have heard Khawaja Muhammad Farooq, Advocate, for the appellant; Hafiz S.A. Rehman, Advocate, for the respondents; and have perused the record of the case. The sale transaction, the subject ‑matter of the pre‑emption suit, was completed on 4‑10‑19136 through a mutation, after the target, date viz., 31‑7‑1986 fixed in Said Kamal Shah's case (PLD 1986 SC 360) which had declared section 16 of the Punjab Pre‑emption Act enumerating the persons entitled to right of pre‑emption as repugnant to the Injunctions of Islam and Sunnah and after the target date no decree for pre‑emption could be passed on the grounds mentioned in section

16. The direction given in Said Kamal Shah's case was given statutory recognition for the first time through Punjab Pre emption Ordinance, 1990 (Ordinance V of 1990) published in the Gazette of Punjab, Extraordinary dated 29‑3‑1990 whereby the Punjab Pre‑emption Act, 1913 (Punjab Act I of 1913) was repealed and Islamic Law relating to pre emption incorporated therein but the Ordinance was not made retrospective with the result that during the interregnum in between 1‑8‑1986 and 29‑3‑199C no statutory law of pre‑emption held the field. This Ordinance was followed by another Ordinance No.X11 of 1990 published on 29‑5‑1990 and again followed by Ordinance XVIII of 1990 published on 27‑8‑1990. Under section 36 of the latter Ordinance, however, it was provided that "notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre‑emption, instituted or pending during the period from Ist August, 1986 and 28th March, 1990, in which the right of pre‑emption was claimed as is available under this Ordinance, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of the commencement of this Ordinance, shall subject to subsection (2), be decided afresh according to the provisions thereof." Subsection (2) provided that "notwithstanding anything in sections 13 and 31, in respect of the suits mentioned in subsection (1), the period of limitation shall be two hundred and forty days and it shall be sufficient if the pre‑emptor establishes that he had made `Talb‑i‑Ishhad' in the presence of two truthful witnesses." This Ordinance also lapsed followed by Ordinance XXXVII of 1990 published on 26‑11‑1990 in which section 36, referred to above, was reincorporated with the only difference that in subsection (2) the period of limitation was enhanced from 240 days to one year. Ultimately, the Punjab Pre‑emption Act, 1991 (Act IX of 1991) was passed whereby the law o: pre‑emption was brought in conformity with the Injunction of Islam relating to pre‑emption in the Punjab. The necessary provisions thereof relevant for the disposal of the controversy between the parties are being reproduced as under for convenience sake:‑‑‑ (5) Right of pre‑emption.‑‑‑(1) The right of pre‑emption shall arise in case of sale of immovable property. (6) (2) Notwithstanding anything in subsection (1), the right of pre emption shall be exercisable only in case of `Zaroorat' or to avoid `Zarar'.

13. Demand or pre‑emption.‑‑‑(1) The right of pre‑emption of a person shall be extinguished unless such person makes demands of pre emption in the following order, namely:‑‑‑ (a) `Talb‑i‑Muwathibat'; (b) `Talb‑i‑Ishhad' and (c) `Talb‑i‑Khusumat.' Explanation.‑‑‑(i) `Talb‑i‑Muwathibat' means immediate demand by a pre‑emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre‑emption. Note.‑‑‑Any words indicative of intention to exercise the right of pre emption are sufficient. (ii) `Talb‑i‑Ishhad' means demand by establishing evidence. (iii) `Talb‑i‑Khusumat' means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre‑emptor through any source, he shall make Talb‑i‑Muwathibat. (3) Where a pre‑emptor has made Talb‑i‑Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb‑i‑Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre‑emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre‑emptor to give registered notice, he may make Talb‑i‑Ishhad in the presence of two truthful witnesses. (4) Where a pre‑emptor has satisfied the requirements of Talb‑i- Muwathibat under subsection (2), Talb‑i‑Ishhad under subsection (3) he shall make Talb‑i‑Khusumat in the Court of competent jurisdiction to enforce his right of pre‑emption.

34. Repeal of Act I of 1913.‑‑‑(1) The Punjab Pre‑emption Act, 1913 (1 of 1913) is hereby repealed. (2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre‑emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof.

35. Saving.‑‑‑(1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre‑emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive), in which the right of pre‑emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to subsection (2), be decided afresh according to the provisions thereof. (2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre‑emptor establishes that he had made `Talb‑i‑Ishhad' in the presence of two truthful witnesses." The learned counsel for the appellant placed explicit reliance on the provision of section 35 of the present Act IX of 1991 and submitted that the present suit was filed on 5‑3‑1987 and the plaint was rejected on 27‑10‑1987, both the dates falling in between the dates mentioned in the said section, the order of rejection shall be deemed to be of no legal effect and the suit of pre -emption has to be decided afresh in view of the right of pre‑emption having been claimed by him on the basis of contiguity and participation in immunities and appendages as provided in section 6, sub‑clauses (b) and (c) of the Act and he having made Talb‑i‑Ishhad in the presence of witnesses as per averment in para. 4 of the plaint. The learned counsel for the respondents, on the other hand, argued that no application within the statutory period of sixty days for the revival of the suit having been filed and the omission of `Zaroorat' or to avoid `Zarar' from the plaint essential for the enforcement of right of pre emption under section 5 of the Act, the prayer of the appellant is not entertainable: In support of his arguments he relied upon the judgment of the Lahore High Court in case Fazal Ellahi v. District Judge, Attock 1993 CLC 85 and the judgment of this Court in Civil Petition No.180 of 1992. As stated earlier, the sale took place after the judgment in Said Kamal Shah's case and the suit was filed on 5‑3‑1987 within one year, according to the provision of subsection (2) of section 35 and the order of rejection having been passed on 27‑10‑1987 prior to 28‑3‑1990, the plaintiff/appellant was legally entitled to apply within sixty days of the coming into force of the Act for revival of suit and its decision on merit but the matter being sub judice in this Court after the leave granting order the appellant could not possibly submit the application and this Court in view of the peculiar circumstances of this case can order revival of the suit and decision on merit. However, the other objection; raised by the learned counsel for the respondents of `Zaroorat' and to avoid `Zarar' requires serious consideration. In the case of Muhammad Iltaf v. Muhammad Nawaz 1992 MLD 1207 the learned Single Judge of the Lahore High. Court held that "pleading of Zaroorat or avoidance of Zarar was essential" and his view was maintained in Civil Petition No.180 of 1992 by this Court. However, the Federal Shariat Court in its judgment in case Muhammad Ismail Qureshi v. Government of Punjab PLD 1991 FSC 80 declared subsection (2) of section 6 as against the injunction of Islam and repugnant to the, principle enunciated in the Holy Sunnah of Hazrat Muhammad (p.b.u.h.) for the simple reason that in Islam the right of pre‑emption is itself based on Zaroorat (necessity) and to avoid Zarar (harm) as enunciated in Said Kamal Shah's case. This judgment, no doubt, is subject to appeal before the Shariat Appellate Bench of this Court and, as such, the validity or otherwise o 1 subsection (2) of section 6 being sub judice has to be left open for consideration in a future case. In the case of Federation of Pakistan v. N.‑W.F.P. Government PLD 1990 SC 1172 the Shariat Appellate Bench of this Court, though in a criminal matter, expressed the view that in a state of vacuum like the one in question the injunction of Islam as contained in the Qur'an and Sunnah shall be deemed to be the law on the subject. The appellant has pleaded Talbs in the plaint and has based his right of pre‑emption on contiguity any participation in immunities and appendages such as the right of i way. This much was sufficient to complete the pleading. Resultantly, we accept this appeal, set aside the judgments of the lower forums and remand the case to the trial Court for decision on merits and according to the new law of pre‑emption. A.A./G‑389/ S Appeal accepted.