2001 PLP 827 (SCMR)

DEEDAR HUSSAIN SHAH, J.

This appeal by leave of the Court is directed against the judgment of the Lahore High Court. Lahore, dated 22-12-1993, passed in F. A. O. No. 111 of 1982.

2. The appellant filed a suit for possession rough pre-emotion against the respondent regarding land measuring 1 Kanal, 2 Marlas, situated in Chak No.2/JB, Tehsil and District, Faisalabad. The disputed land had been alienated through a registered sale-deed dated 4-3-1978 in favour of the respondent by the brothers and sisters of the appellant/plaintiff. The appellant claimed preferential right on the basis of his co-sharership in the Khata. In the written statement the respondent took the plea that the actual sale-deed had taken place in the year 1970 when the agreement of sale and receipt regarding payment of total consideration had been executed by the vendor in favour of the vendee: It was asserted that the Ahata in dispute, being in the colony area, the Punjab Pre-emotion Act was not in force to the area in that year. Five issues were framed. Issues Nos. 1 and 2 only were adjudicated upon which related to the land being not pre-emptable and the suit being barred by limitation as claimed in the preliminary objections in the written statement. Vide judgment and decree dated 4-10-1981 the learned Civil Judge dismissed the suit. However, the appeal preferred by the appellant was accepted by the learned District Judge, Faisalabad, vide his judgment dated 23-5-1982, whereby the case was remanded to the trial Court for a fresh decision in accordance with law; the relevant paras. of the judgment read as under; I am of the view that Issues Nos. l and 2 were wrongly decided. I would, therefore, reverse the learned Civil Judge's findings on both these issues and decide them in the affirmative. It is admitted that the plaintiff is a brother of the vendors and has, therefore, a superior right of pre-emotion, as against the defendant, who is not shown to be in any way related to the vendors. The learned Civil Judge gave no finding on Issue No.4, which was whether the defendant had effected improvements and if so, what their value was? I, therefore, accept the appeal and set aside the judgment and decree appealed from but as the learned Civil Judge has not given finding on Issue No.4.1 would send the case back to the learned Civil Judge for deciding that issue. The parties shall appear before the learned Civil Judge on 31-5-1982. The parties are left to bear their own costs."

3. Feeling aggrieved with the aforesaid judgment of the District Judge, the respondent filed an appeal in the Lahore High Court, which was allowed dated 22-12-1993; the relevant portion whereof reads as under :

"Admittedly, the appellant's suit was never decreed at any stage-of litigation and in view of the dictum of the Hon'ble Supreme Court in the case of Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) no decree can be passed in favour of the pre-emptor after the target date i.e. 31-7-1986. Further, proceedings in pursuance of the remand order would be an exercise in futility. Therefore, this appeal is accepted, the remand order dated 23-5-1982 passed by the Appellate Court is set aside and the suit filed by the respondent ordered to be dismissed, leaving the parties to bear, their own costs." 4.Leave granting order dated 16-10-1995 reads as under: "We are inclined to grant leave to consider whether the impugned judgment is in consonance with law. Leave is, accordingly, granted subject to the question of limitation at the time of regular hearing. The parties shall maintain 'status quo in respect of the suit property."

5. Learned counsel appearing on behalf of the appellant, inter alia, contended that the findings of the High Court that no decree had been passed in the case before the target date are patently erroneous; that the learned trial Judge had dismissed the suit vide his judgment dated 4-10-1981; that the appellant assailed the judgment of the trial .Court before the District Judge, Faisalabad; that the learned First Appellate Court accepted Appeal No.115/13 of 1981, reversed the findings of the trial Court and remanded the case to the Civil Judge for giving his finding on Issue No.4. Learned counsel further contended that the judgment of the learned High Court was announced on 22-12-1993, on which date only the counsel for the appellant had appeared in the Court and it was only he to whom the information of the date had been conveyed through a regular cause fist, but the counsel failed to intimate the appellant about the decision of the appeal; that on 30-4-1994 the appellant came to know that the case had been decided against him. He, therefore, applied for the copy of the judgment and after receiving the same on 19-5-1994 filed the Petition for Leave to Appeal; that the delay of 68 days in filing the petition, in any case, was not intentional or deliberate, which may very kindly be condoned. In support of his contentions the learned counsel has referred to Mst: Rehmat Bibi v. Punnu Khan (1986 SCMR 962) and Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and-29 others (1987 SCMR 1543). .

6. Mr. Muhammad Munir Paracha, learned counsel for the respondent, submitted that the present appeal is barred by time, because, even according to the contentions of the learned counsel for the appellant he received the attested copy of the impugned judgment on 17-5-1994, whereas Petition for Leave to Appeal was filed on 30-5-1994, and no explanation whatsoever for the delay has been given. He further submitted that this Court in Mst. Sirajun Munira v.. Pakistan through Assistant Deputy Director-General (Adorn.), Islamabad (1998 SCMR 785) held that each day's delay has to be explained with some cogent and plausible reasons. He submitted that delay, in any case, may not be condoned and further relied on Ahmed Din v. Ghulam Muhammad through Legal Heirs and, others (2000 SCMR 647). Learned counsel for the respondent frankly conceded that the impugned judgment passed by the learned High Court is not on merits but it is based on the decision of this Court in Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), whereas the case of the appellant was pending before the lower forums much before the target date i.e. 31-7-1986. Lastly he submitted that if the delay .is condoned, then the case may be remanded to the High Court for fresh decision on merits.

7. We have gone through the material placed on record and have also minutely perused the plethora of case-law cited by the learned counsel for the parties. The appellant filed the suit for possession through pre-emption on 3-3-1979, which was dismissed by the learned Civil Judge vide judgment and decree dated 4-10-1981. The appeal filed by the appellant was accepted by the learned District Judge vide judgment dated 23-5-1982 whereby the findings of the learned trial Court were reversed as mentioned' hereinabove. Thereafter, the respondent filed' F.A.O. No.111 of 1982. The learned Single Judge of the High Court, without minutely examining the record, allowed the appeal and reversed. the findings of the First Appellate Court, keeping in view the decision of Malik Said Kamal Shah's' case (supra), and held that no decree can be passed in favour of the Pre-emptor after the target date i.e. 31-7-1986. It would be advantageous to refer below the relevant portion of the judgment passed by this. Court in Bahadur Khan v. Muhammad Yousaf and another (1992' SCMR 2117 at 2120):-- "The Punjab Pre-emption Act, 1913 (Act I of 1913) was also repealed through Punjab Preemption Act, 1991 (Act XI of 1991) on 6-4-1991 and it would be profitable to-reproduce section 34 thereof which is more or less, identical to section 35 of the new N.-W.F.P. Pre-emption Act, 1987. "

34. Repeal of Act I of 1913.--(1) The Punjab Pre-eruption Act, 1913 (I of 1913) is hereby repealed. (2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August; 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof." On the touchstone of reasoning advanced in Rozi Khan's case, the decrees passed in favour of pre-emptors before 1-8-1986 are protected from the effect of Said Kamal Shah's case and all the further proceedings in connection therewith are to be governed and decided under the provisions of the old Act (I of 1913). In the instant case, decree in favour of the pre-emptor, though ex parte, was passed on 18-7-1985 and as such the further proceedings for the setting aside thereof and the subsequent trial after its setting aside shall be governed by the Punjab Pre-emption Act of 1913 as if it had not been repealed."

8. The narration of the above facts makes it quite clear that litigation was pending before, the lower Courts much before the target date i.e. 31-7-1986. The impugned judgment of the learned High Court is not supported by the record of the case rather it is contrary to the record, which appears to be void, ab initio and illegal and under the circumstances the same is not to be sustained.

9. This Court, being apex Court, as required under Article 187 of the Constitution, has to do complete justice and mere technicality of delay, which has already been explained properly by the learned counsel for the appellant, is to be condoned. The explanation furnished by the appellant in filing the petition late is plausible and reasonable. We, accordingly, condone the delay.

10. For the above facts, circumstances and case-law the appeal is accepted, the impugned judgment is set aside and the case is remanded to the High Court for decision afresh on merits. The parties are left to bear their own costs. Q.M.H./M.A.K./M-215/S Appeal allowed.