P L D 1989 Peshawar 174 (PLP)

Relying on section 13 read with section 35 of the N.‑W.F.P Pre‑emption Act, 1987 the learned trial Judge dismissed suits bearing; Nos. 575/1 of 1983, 259/1 of 1984, 182/1 of 1985, 59/1 of 1985, 61/1 of 1987, 60/1 of 1985, 418/1 of 1986, 419/1 of 1986, 420/1 of 1986. 421/1 of 1986,'422/1 of 1986 and 421/1 of 1983, which are the subject- matter of Civil Revisions at serial Nos.l to 12 mentioned above. These orders were challenged in appeals before the learned District Judge who relying on Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and law laid down in Muhammad Ishaq v. The State (PLD 1956 SC (Pak.) 256), Karim Shah v. Mst. Zenat Bibi 195 Indian Cases p.304 (AIR 1941 Lah.175) and Sugni Chand Dayaram Jatwani v Pakistan through the Ministry of Rehabilitation Karachi and The Rehabilitation Authority, Sukkur (PLD 1961 SC 523) and several other reported judgments formed his view that pending cases instituted under the repealed law are not covered by section 13 and are saved by section 35 of the Act. Accordingly he accepted the appeals subject- matter of C.R.No.l to 4, set aside the judgments and decrees of the trial Judge and remanded these cases for decisions on merits. In civil revisions at serial Nos.5 to 12 the orders of dismissal of the plaintiffs' suits were upheld in appeals filed by the plaintiff‑pre- emptors against which the aforementioned revision petitions have been filed. C.R.No.443 of 1987 is directed against the order of the learned Civil Judge who rejected the vendee‑defendant's application for dis missal of the plain tiff‑pre‑emptors' suit under the above provision of law.

2. In order to properly appreciate the contentions of the learned counsel for the parties, I would like to reproduce the relevant sections of the new law as follows: "

6. Persons in whom the right of pre‑emption vests.‑‑The right of pre‑emption shall vest (1) firstly in Shafi Sharik; (2) secondly in Shafi Khalit; and (3) thirdly in Shafi Jar. Explanations: (i) "Shaft Sharik" means a person who is a co‑owner in the corpus of the undivided immovable property sold with other person or person or person. (ii) "Shaft Khalit" means a participator in the special rights attached to the immovable property sold, such as right of passage of water or right of irrigation. (iii) "Shaft Jar" means a person who has a right of pre‑emption because of owning an immovable property adjacent to the immovable property sold.

13. Demand of 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 Explanations: (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 notice under section 34 or knowledge, whichever may be earlier, make Talb‑i‑Ishhad by sending a notice in writing attested by two truthful witnesses, under the registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre‑emption: Provided that in areas where due 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) and Talb‑e‑Ishhad under subsection (3), he shall make Talb‑i‑Khusumat, in the Court of competent jurisdiction to enforce his right of pre‑emption.

35. Repeal (1) The North‑West Frontier Province Pre‑emption Act, 1950 (N.‑W.F.P. Act XIV of 1950), is hereby repealed. (2) In the cases and appeals filed under the law referred to in subsection (1) in which Judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof. (3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre‑emptors shall stand dismissed, except those in which right of pre‑emption is claimed under the provisions of this Act. Admittedly section 35 of the Act deals with the pending cases and appeals filed under the repealed law, however, it has drawn a distinction in cases in which decrees have been passed before the enforcement of the new law, or for the purpose of the present controversy before 31‑7‑1986, and those cases which were pending before the trial Court on 31‑7‑1986 and in which decrees were not yet passed. In the former cases further proceedings were to be taken under the repealed law while the latter cases are to lapse and suits of the pre‑emptors are to be dismissed except those in which right of pre‑emption is claimed under the provisions of this Act.

3. The learned counsel for the plaintiff‑pre‑emptors referred to section 6 of the Act and contended that right of pre‑emption claimed in the suits being available to them under section 6 of the Act the judgments and orders of the learned Courts below dismissing the plaintiff‑pre‑emptors' suit, being illegal were liable to be set aside. On the other hand, it was argued by the learned counsel for vendees that undoubtedly section 6 of the Act the defendants enitmerates those persons in whom the right of pre‑emption vests in preference to the defendants‑vendees in order of their respective merits but these rights stood extinguished on the plaintiffs failure to demand pre‑emption within the meaning of section 13 of the Act. Vesting of a right in a person and extinguishment of such right in absence of compliance with the provision of section 13 are co‑relative and if read together disentitles a plaintiff pre‑emptor to the decree. In other words, the right of pre‑emption vested in a pre‑emptor under section 6 stood extinguished by section 13 hence no benefit can be claimed of the saving clause under section 35 of the Act.

4. After hearing the learned counsel for both the parties I d no merit in the revision petitions filed by the plaintiff‑pre‑emptors in view of the judgment of the Supreme Court of Pakistan cited above. No doubt section 35 saves those pending suits from abatement and dismissal in which right of pre‑emption is claimed under the provisions of new law but the provisions referred to above are not to be restricted to a right of pre‑emption provided for in section 6 of the Act alone but is to be read with section 13 which extinguishes such existing right when no demand for pre‑emption is made as provided therein. The contention of the learned counsel that it cannot be visualised that before the judgment in Government of N.‑W.F.P. v. Muhammad Said Kamal Shah, the plaintiff would have made demand C for pre‑emption and would have complied with the provision of section

13. That the provision of section 13 having been held to be substantive in nature and not procedural in the said judgment its retrospective operation is against the Constitutional provision. There is no force in the contentions as these questions have been fully dealt with, and answered in the judgments Sher Muhammad v. Allah Ditta (PLD 1988 SC 412) and Ghulam Qadir v. Nawab Din (PLD 1988 SC 701). In this view of the matter revision petitions 1 to 4 (Nos.14, 15,49 and 82 of 1988) against the order of remand are accepted, the judgment and order of the District Judge, passed in appeals are set aside and those of the trial Court dismissing the plaintiffs‑pre‑emptors' suits are restored. Revision Petitions 5 to 12 (Nos.560, 561, 562, 507, 508, 509, 510, 511 of 1987) are accordingly dismissed. Similarly C. R. No. 443 of 1987 is accepted and the defendant‑petitioner's application for dismissal of the plaintiff‑respondent's suit is allowed. In consequence thereof the plaintiff‑respondent s suit also stands dismissed. M.B.A./714/P Order accordingly.