2006 PLP 259 (SCMR)
Mst. ATTA ELAHI through Special Attorney — Petitioner Versus ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 4 others — Respondents
| Citation | 2006 PLP 259 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ |
| Parties | Mst. ATTA ELAHI through Special Attorney — Petitioner Versus ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 4 others — Respondents |
| Primary Law | Punjab Pre-emption Act (IX of 1991) |
Q1: What are the key laws and sections cited in 2006 PLP 259 (SCMR)?
This judgment primarily cites: Punjab Pre-emption Act (IX of 1991) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2006 PLP 259 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2006 PLP 259 (SCMR) (Mst. ATTA ELAHI through Special Attorney — Petitioner Versus ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 4 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Pir Muhammad Asif Rafi, Advocate Supreme Court for Petitioner.
- Nemo for Respondents.
- Date of hearing: 28th November, 2005.
Headnotes / Summary
(On appeal from the judgment, dated 23-12-2003 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No.216/PR of 1996).
S. 35(2)
Constitution of Pakistan (1973), Art. 185(3)
Non-mentioning of Talb-i-Ishhad in the plaint
Effect
Time barred petition for leave to appeal
Courts below declined to revive suit of pre-emptor which was dismissed for non-performance of required Talb
petition for leave to appeal was time-barred by 38 days--Plea raised by pre-emptor for condonation of delay was that the time was lost in obtaining copies of Civil Court record-Validity-High Court rightly refused to revive the suit for the reason that facility of proving Talb-i-Ishhad under S.35(2) of Punjab Pre-emption Act, 1991, was not available due to being a question of fact, having not been alleged in the plaint
Plea raised by pre-emptor for condonation of delay was not tenable as the period which was not computed under law was the one spent in obtaining copies of impugned judgment or order and not for any other copies that the petitioner might require
Delay was not condoned by Supreme Court
Leave to appeal was refused. Kamal Shah's case PLD 1986 SC 360 and Haji Rana Muhammad Shabbir Ahmed Khan's case PLD 1994 SC 1 ref.
Judgment & Decree
SARDAR MUHAMMAD RAZA KHAN, J.
Mst. Atta Elahi seeks leave to appeal against the judgment dated 23-12-2003 of Lahore High Court, Multan Bench whereby her writ petition has been dismissed.
2. The lady had filed a pre-emption Suit No.530 of 1987 against Karim Bukhsh etc. which, on 18-12-1988, was dismissed on the basis of this Court judgment in Kamal Shah's case PLD 1986 SC 360, for not having alleged and performed Talb-i-Muwathebat etc. in a case where no decree was passed before 31-7-1986. Subsequently, on promulgation of Punjab Pre-emption Act, 1991 and under section 35(1) thereof she applied for revival of her suit in order to prove the performance of Talb i-Ishhad under subsection (2) of section 35 of the Act. Such application was dismissed by the trial Court as well as by the First Appellate Court. She filed a writ petition which too was dismissed through the impugned order holding that the facility of proving Talb-i-Ishhad under section 35(2) of the Punjab Pre-emption Act, 1991 was not available due to being a question of fact, having not been alleged in the plaint. Section 35(2) of the Punjab Pre-emption Act, 1991 reads:-- "(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-emption establishes that he had made `Talb-e-Ishhad' in presence of two truthful witnesses."
3. Not only that we agree with the observation made by the learned High Court but also are of the view that the Shariat Appellate Bench of this Court in Haji Rana Muhammad Shabbir Ahmed Khan's case PLD 1994 SC 1 has declared the provisions of section 35(2) of Punjab Pre-emption Act, 1991 repugnant to the Injunctions of Islam, insofar as it exempts the suit of pre-emption instituted or pending between 1st day of August, 1984 and 28th March, 1990 from the requirements of Talb-i-Muwathibat and because it has extended the period of limitation for such suits to one year.
4. The instant petition is also time-barred by 38 days. The ground for condonation, to the effect that the time was lost in obtaining copies of Civil Court record, is also not tenable. The period which is not computed under the law is the one spent in obtaining the copies of impugned judgment or order and not for any other copies that the petitioners might require.
5. Consequently, there being no force in the hopelessly time-barred petition, it is hereby dismissed and leave to appeal refused. M.H./A-197/SC Petition dismissed.