1993 PLP 1316 (SCMR)

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of the Court against the judgment, dated 12‑10‑1987 passed by a learned Single Judge of the Lahore High Court in Civil Revision No.1997‑D of 1984, filed by the respondents‑pre‑emptors against the concurrent judgments of the two Courts below dated 30‑6‑1981 and 25‑9‑1984 passed by the learned Civil Judge, Ist Class, Bhalwal, and the learned Additional District. Judge, Sargodha, in Civil Suit No.323 of 1980 and Civil Appeal No.217 of 1982, respectively, dismissing the respondents' suit for pre‑empting the sale transaction, allowing the same by setting aside the above concurrent judgments and decreeing the suit on the above date, namely, 12‑10‑1987. Leave to appeal was granted to consider, whether the ratio decidendi of the cases of Said Kamal PLD 1986 SC 360 and Aziz Begum PLD 1990 SC 899 was applicable to the present case.

2. The brief facts are that the respondents filed the above suit for pre emption of the suit land, which was resisted by the appellants. The learned Civil Judge, after framing issues, recording evidence and hearing the parties, by his aforesaid judgment and‑ decree, dismissed the suit. Against the same, the respondents filed above civil appeal, which was also dismissed. After that, the respondents filed above civil revision, which was upheld and the judgments/decrees of the two Courts below were set aside and the respondents' suit was decreed on the above date. Thereupon, the appellants filed Civil Petition for Leave to Appeal No.908 of 1987, which was dismissed by an order, dated 19‑6‑1990 alongwith a number of other petitions for leave to appeal. After that, the appellants filed Civil Review Petition No.57‑L of 1990 against the above order of dismissal, which was allowed by recalling the above order of dismissal and leave to appeal was granted to consider the above question.

3. In support of the above appeal, Mr. S.M. Tayyab, learned Advocate Supreme Court appearing for the appellants, has vehemently urged that the learned Judge in chamber could not have passed pre‑emption decree first time on 12‑10‑1987, as the target date fixed in the case of Sardar Ali v. Muhammad Ali PLD 1988 SC 287, was 31‑7‑1986.

4. We may observe that this Court, while interpreting the judgment of the Shariat Appellate Bench of this Court in the case of Said Kamal (supra) and in Sardar Ali's case (supra), has held that no decree of pre‑emption, on the basis of Pre‑emption Law which has been held repugnant to the Injunctions of Islam, can be passed after 31‑7‑1986. This view has been reiterated inter alia in the subsequent judgment of this Court in the case of Ahmad v. Aziz Ahmad PLD 1989 SC 771, Since in the present case, the learned Judge in chamber passed the above pre‑emption decree against the above target date of 31‑7‑1986, the same cannot be sustained. The appeal is, therefore, allowed and the judgment under appeal is set aside. However, there will be no order as to costs. A.A./M‑1734/S Appeal accepted.