1987 PLP 2906 (MLD)

Ss.4,15 & 21--Suit for pre-emption--Maintainability of--Effect of Supreme Court Judgment (P L D 1986 S C 360) on suits filed prior to announcement 'of judgment--Rule laid down by Shariat Appellate Bench of Supreme Court in P L D 1986 S C 360, has no retrospective effect--Suit for pre-emption filed prior to said decision, held, would not be hit by law laid down in that decision. Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 S C 360 and Abdul Ghaffar and others v. Saghir Ahmad Aslam and others P L D 1987 Lah.358 ref: Ch. Nazar Hussain for Petitioners. Abdul Ghani for Respondent. Date of hearing: 2nd November, 1987. This civil revision has arisen out a suit brought by the petitioners, Malla and another, against the respondent, Moonda, for possession of certain land through pre-emption. The said land was sold by one Allah Ditta in favour of the respondent on 11th February 1984 by means of a registered deed. It was alleged by the petitioners that they were owners of the estate but the respondent was a stranger and, therefore, the former had superior right of pre-emption. Relying on dictum in Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (P L D 1986 Supreme Court 360)(Shariat Appellate Bench), it was held by the Civil Judge, who was seized of the suit, that since the qualification claimed by the petitioners for pre-empting the disputed land was not recognised by Islam the suit could not succeed. Appeal preferred by the petitioners also met with the same fate. Hence this civil revision.

2. It was contended by learned counsel for the petitioners that the view taken by the learned Courts below is contrary to one expressed by the Full Bench of this Court in Abdul Ghaffar and others v. Saghir Ahmad Aslam and others (P L D 1987 Lahore 358). It has been held by the Full Bench that the rule laid down by the Shariat Appellate Bench in the case of Government of N.W.F.P. through Secretary, Law Department will apply prospectively and not retrospectively. Admittedly, the suit giving rise to this civil revision was filed by the petitioners before the case of Government of N.W.F.P. through Secretary, Law Department was decided by the Shariat Appellate Bench. Their suit was, therefore, not hit by the law laid down by the Shariat Appellate Bench in the case of Government of N.W.F.P. through Secretary, Law Department.

3. In this view of the matter, judgments and decrees passed by the learned lower Courts call for interference .by this Court. This civil revision is, accordingly, accepted, judgments and decrees passed by the learned lower Courts set aside and case remanded to the learned trial Court for fresh decision in accordance with law. Parties shall bear their own costs.. They shall appear before the learned trial Court on 22nd November 1987. H . B . T . / M-460 / L Revision accepted.