2004 PLP 927 (YLR)

Seerat Hussain Naqvi for Petitioner. Zia Ullah Khan Niazi for Respondents. Date of hearing: 13th January, 2004. Brief facts in the instant civil revision are that suit for possession through pre-emption was filed by the petitioner, the same was contested, evidence was produced and the leaned Trial Court dismissed the suit by way of rejection of plaint under Order VII, rule 11, C.P.C. On appeal the learned Appellate Court vide judgment and decree, dated 27-5-1998 affirmed the judgment and decree passed by the learned trial Court hence this civil revision.

2. Arguments advanced by learned counsel for the petitioner are that the petitioner was non-suited on the basis of proof pertaining to Zarar and Zaroorat, which is declared contrary to the Injunctions of Islam vide "Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore" (PLD 1994 SC 1) and the plaintiff could not be non-suited in view of aforesaid judgment without affording opportunity to the petitioner to prove the requirement of Talb- e-Muwathibat, which was duly incorporated in the plaint.

3. Learned counsel for the respondent relied on "Mst. Bashiran Bibi v. Muhammad Kashif Khan" (PLD 1995 Lahore 200) wherein it is held that pre-emption suit instituted on 15-11-1989 i.e. during the interregnum period existence of Zaroorat and avoidance of Zarar was necessary in accordance with dictates of section 6(2) of the Act. Elements of Zaroorat and avoidance of Zarar being conspicuously absent in the plaint of pre emption before Supreme Court's decision had taken effect. Plaint in pre-emption suit was materially defective and had been rightly rejected on that score. Effect of the decision of Supreme Court (PLD 1994 SC 1) whereby sections 6(2) and 35(2) of Punjab Pre-emption Act being repugnant to the Injunctions of Islam is w.e.f. 31-12-1993, therefore, both the learned Courts below have rightly rejected the plaint and non-suited the plaintiff.

4. I have heard the learned counsel for parties and perused the impugned judgments of both the learned Courts below. Although the suit was contested, issues were formulated and evidence was produced but since elements of Zaroorat and Zarar have not been mentioned in the plaint, the learned Courts below keeping in view the pleadings of parties that knowledge of sale was gained by the pre emptor 8/9 days before institution of suit and no specific date or time has been mentioned, therefore, the making of Talb e-Muwathibat which is necessary for a suit for pre-emption could not be proved. Moreover it was necessary that Zaroorat or avoidance of Zarar was to be pleaded in the plaint in terms of section 6(2) of Punjab Pre-emption Act, 1991. The suit was filed on 13-2-1989 during the interregnum period of 1-8-1986 to 13-2-1989 was to be filed in terms of section 35(2) of the Punjab Pre-emption Act, 1991, where it was necessary to mention the elements of Zaroorat and avoidance of Zafar for filing a suit for Pre-emption and also Talb-e-Muwathibat. Plaint in pre-emption suit was rejected on these both counts on account of lack of mentioning Zaroorat and Zarar and also not proving Talb-e-Muwathibat.

5. As far as "Haji Rana Muhammad Shabbir Ahmad Khan v. Government or Punjab Province, Lahore" (PLD 1994 SC 1) is concerned this will positively be applied prospectively w.e.f. 31-12-1993. It will not apply retrospectively to a suit filed on 13-2-1989, therefore, the learned Appellate Court keeping in view the judgments "Muhammad Ishaque and others v. District Judge, Sargodha and others" (PLD 1993 Lahore 456) and "Muhammad Ismail Qureshi and others v. Government of Punjab and others" (PLD 1991 FSC 80) has rightly rejected the plaint filed by the petitioner. No interference by this Court is required in the concurrent findings of both the learned Courts below. Instant civil revision is dismissed. M.B.A./F-4/L Petition dismissed.