1999 PLP 120 (CLC)

Instant appeal is directed against the judgment, dated 2‑7‑1995 passed by the learned Additional District Judge, Sargodha whereby he set aside the order, dated 19‑1‑1993 and remanded the suit to the trial Court for deciding the same in accordance with law.

2. Land measuring 18‑1/2 Kanals was purchased by Abdul Hamid vide Mutation No.376, dated 16‑4‑1992. The sale was pre‑empted by Haq Nawaz by filing a suit for pre‑emption on 15‑8‑1992. The suit was resisted/contested by the vendee/defendant/petitioner. During the pendency of suit an application under Order 7, Rule 11, C.P.C. was also filed by the defendant/petitioner, praying that plaint be rejected as provisions of sections 6(2) and 13 of Punjab Pre‑emption Act, 1991 had not been complied with. This application was resisted by the plaintiff. The lower Court vide order, dated 19‑1‑1993 found favour with the contentions raised therein and while accepting the application rejected the plaint. The plaintiff/respondent felt aggrieved by the said order and filed an appeal which was heard by the learned Additional District Judge, Sargodha, who accepted the same and remanded the suit to the trial Court vide judgment, dated 2‑7‑1995, with a direction to decide the same in accordance with law. Hence the instant revision petition.

3. Arguments have been heard and record perused.

4. It is submitted by the learned counsel for the petitioner that admittedly sale took place on 16‑4‑1992 whereas the instant suit was filed on 15‑8‑1992. His contention is that as per section 6(2) of the Punjab Pre‑emption Act, 1991, it was incumbent upon the plaintiff/pre‑emptor/respondent to incorporate the plea of "Zarar" and "Zaroorat" in his plaint which he failed to take. He ‑next contended that according to section 13 of the Punjab Pre‑emption Act, 1991 it was mandatory on the part of plaintiff/pre‑emptor/respondent to incorporate Talb‑i‑Muwathibat with date and place of acquiring knowledge of transaction as well as names of witnesses in whose presence the said Talb was made, as the said details were necessary for calculating period of limitation for Talb‑i‑Ishhad failing which suit was liable to be dismissed and relied upon Khani Zarnan v. Shah Hussain and others PLD 1998 SC

121. He further supplemented his contention by relying upon Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780, Zafar Ali v. Zainul Abidin and another 1992 SCMR 1886. He submitted that although provisions of section 6(2) of Punjab Pre‑emption Act were declared repugnant to the Injunctions of Islam by the Federal Shariat Court in Muhammad Ismail Qureshi and others v. Federal Government and others PLD 1991 FSC 80, yet the said provisions ceased to have effect ‑w.e.f. 31‑12‑1993, as held in Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC

1. He, thus, submitted that trial Court was justified in rejecting the plaint under Order VII, Rule 11, C.P.C. whereas the Appellate Court was not justified in setting aside the said order vide order under revision.

5. Conversely, it is stated by the learned counsel for the plaintiff/ respondent that non‑compliance of section 6(2) of the Punjab Pre‑emption Act, 1991 is of no consequence as the provisions of section 6(2) (supra) had been declared repugnant to the Injunctions of Islam vide judgment reported in PLD 1991 FSC

80. So far as the non‑compliance of the provisions of section 13 of the Act is concerned, he submitted that it is also of no legal consequence. He submitted that though there is no explicit mention of Talbs, .yet it can be construed from the contents of Para. No.4 of the plaint wherein it has been mentioned that notice according to Shariah had been given to the vendee/defendant. He, thus, submitted that Appellate Court was justified in disagreeing with the findings of the Courts below and remanding the suit vide order under revision.

6. There is no doubt that according to section 6(2) of the Punjab Pre emption Act, 1991, it was mandatory on the part of a pre‑emptor to comply the same. However, it is also fact that at the time of filing suit on 15‑8‑1992, the judgment of Federal Shariat Court PLD 1991 FSC 80 has been delivered whereby provisions of section 6(2) of the Act (supra) had been held to be repugnant to the injunctions of Islam. Thus, the non‑compliance of said provisions cannot be considered fatal in the instant case. The matter does not end here. A perusal of plaint further reveals that even the provisions of section 13 of the Act (supra) have also not been complied with. The non‑compliance of such provisions has been held to be fatal as held in PLD 1998 SC 121 (supra), Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780 and Zafar Ali v. Zainul Abidin and another 1992 SCMR 1886. According to PLD 1998 SC 121, it is mandatory on the part of pre‑emptor to mention the date of Talb‑i -Muwathibat, place of acquiring knowledge of transaction as well as names of witnesses in whose presence the said Talb was made as referred by section 13 of the Punjab Pre‑emption Act, 1991. Admittedly, provisions of section 13 of Punjab Pre‑emption Act, 1991 have not been complied with by the plaintiff/respondent as is evident from the contents of plaint. Thus, the trial Court was justified in rejecting plaint under Order 7, Rule 11, C.P.C. The Appellate Court has not exercised the jurisdiction vested in it in accordance with law while setting aside the order of lower Court. Accordingly, revision petition is accepted, order of Appellate Court, dated 2‑7‑1995 is reversed and that of lower Court, dated 19‑1‑1993 is upheld. H.B.T./A‑342/L Revision petition accepted