1989 PLP 218 (MLD)

Ch. Abdul Rahman for Petitioners. Muhammad Yaqoob Sabir for Respondent No.

1. Date of hearing: 16th January, 1989. The facts are that Muhammad Yasin and Muhammad Anwar, petitioners filed a pre‑emption suit and rested their claim as to the superior right of pre -emption on the ground that the land comprised in their tenancy. Notwithstanding the enforcement of Land Reforms (Amendment) Ordinance, 1976, with effect from 19th May, 1976 whereby the Land Reforms Regulation, 1972 was amended and jurisdiction to hear such pre‑emption cases conferred on the Collector exclusively, the suit was instituted in the Civil Court. It was decreed on 22‑6‑1976. However, on the vendee's appeal the learned District Judge, held that the trial Court lacked jurisdiction and set aside its decree on 18‑10‑1977. It was thereafter that the suit was listed before the Collector where the question of deficiency in the Court‑fee was raised by the respondent but the petitioners were permitted to make good the same. The respondents' revision against the Collector's order was dismissed by the Additional Commissioner by his order dated 26‑10‑1980. However, they succeeded in Second Revision, The learned Member Board of Revenue by his order dated 7‑6‑1981, under challenge in this writ petition came to the conclusion that the time for Payment of Court‑fee could not be extended and that both the Collector and the Additional Commissioner, committed an illegality in permitting the petitioners to pay the requisite court‑fee.

2. Through this C.M. application the writ petition is sought to be dismissed on the ground that it cannot proceed in view of enunciation of law by the Supreme Court to the effect that conferment of superior right of pre‑emption on a tenant, under the Land Reforms Regulations, 1972, is repugnant to Quran and Sunnah. Reliance is placed on Govt. of N.W.F.P. v. Said Kamal Shah (PLD 1986 S C 360) and Sardar Ali v. Muhammad Ali (PLD 1988 S.C. 287).

3. I have heard the learned counsel for the parties. The learned counsel for the respondent/applicant contends that in Saidar Ali's case it has been maintained that the suit in which the decree was not passed before 31‑7‑1986 could not proceed and no decree could be passed therein because the law ceased to have the effect from that date. As the petitioners' suit was not decreed before 31‑7‑1986 by the Collector, the writ petition becomes infructuous, for, the Collector cannot pass any decree now. This argument fmds ample support from Para 16 of the Judgment. The petitioners' suit before the Collector is obviously A hit by the Supreme Court's decision. But, to get out of the difficulty with which their learned counsel is faced, he vainly endeavoured to lay hand on Civil Court's decree dated 22‑6‑1976. But his reliance on that decree is misconceived as it was passed by the Civil Court which had no jurisdiction; it was thus a nullity in law and set aside by the appellate Court.

4. In this view of the matter there is no use to keep this writ petition pending on the file of the Bench. The petitioners' suit cannot proceed. The writ petition has become infructuous. It is dismissed leaving the parties to bear their own costs. H.B.T./M‑1045/L Petition dismissed.