1987 PLP 860 (SCMR)

‑‑‑O. VII, R. 11‑‑Punjab Pre‑emption Act (I of 1913), S. 15(a)‑ Constitution of Pakistan (1973), Art. 185(3)‑‑Right of pre‑emption‑‑ Heirs of vendor‑‑Effect of judgment of Supreme Court reported as PLD 1986 SC 360‑‑Suit for pre‑emption by heirs‑‑Plaint rejected on account of deficiency in court‑fee‑‑Order impugned‑‑Respondent taking plea that since no pre‑emption decree was ever passed in favour of petitioners by any Court during course of litigation, no right of pre‑emption ever vested in them and after S. 15 (a) having become invalid the suit which was based entirely on basis of right conferred by aforesaid clause, was no longer maintainable and petition had become infructuous‑ Question raised being of great importance and likely to affect a number of cases, matter was adjourned for hearing by a larger Bench. Siddique Khan and others v. Abdul Shakoor Khan and another P L D 1984 SC 289; Government of N.‑W.F.P. v. Syed Kamal Shah PLD 1986 S C 360 and Khan Muhammad etc. v. Ghulam Rasool etc. PLD 1987 Lah. 71 ref. Mirza Anwar Beg, Advocate Supreme Court for Petitioner Dr. A. Basit, Advocate Supreme Court for Respondent. Date of hearing: 12th January, 1987. NASIM HASAN SHAH, J.‑‑The petitioners Mian Muhammad Inayat and Mian Ghazanfar Abbas sons of Mian Fazal Muhammad instituted a suit to pre‑empt a sale made by their father in favour of one Haii Ghulam Nab!. The trial Court, however, rejected the plaint on 6‑2‑1976 under Order VII, Rule 11, C.P.C. on the ground that the pre‑emptors had deliberately and contumaciously fixed a ridiculously low court‑fee on the plaint and the appeal against the said order was also dismissed on I1‑1‑1982 by the High Court. Hence this petition for leave to appeal. A Bench of this Court on 13‑4‑1986, when the petition for leave to appeal came up for hearing, issued a notice to the respondent for converting the petition into an appeal and its disposal accordingly in view of the judgment of this Court reported as Siddique Khan and others v. Abdul Shakoor Khan and another PLD 1984 SC

289. In pursuance thereof Dr. A. Basit, Advocate, appearru uaiore us today on behalf of the respondent and inter alia submitted that in view of the judgment of the Shariat Appellate Bench of this Court in the case of Government of N.‑W.F.P. v. Syed Kamai Shah PLD 1986 SC 360 wherein the right of pre‑emption given to the lineal descendants by clause (a) of section 15 of the Punjab Pre‑emption Act has been found to be against the injunctions of Islam and the aforesaid clause (a) of section 15 declared as invalid, this matter cannot proceed. According to him since no pre‑emption decree was ever passed at any stage in favour of the petitioners by any Court during the course of the litigation no right of pre‑emption ever vested in them and that after clause (a) of section 15 having become invalid the suit, which is based entirely on the basis of the right conferred by the aforesaid clause, is no longer maintainable. He thus maintains that this petition for leave to appeal has become infructuous. He has also relied upon the judgment of the High Court reported as Khan Muhammad etc. v. Ghulam Rasool etc. PLD 1987 Lah. 71 in support of his submission. As the question raised is of great importance and is likely to affect a large number of cases, we are of the opinion that it may be heard by a larger Bench. Let the papers be placed before Hon. C.J. for orders. To come up on 21‑2‑1987. M.I. /M‑69/S Order accordingly.