P L D 1993 Lahore 44 (PLP)

Vol. XLV The facts necessary for disposal of this petition are that Muhammad Hussain respondent filed a suit for possession through pre-emption on 24-3-1987, claiming superior right of pre-emption being a co-sharer in the Khata. It was asserted that though Sale Mutation No.359 sanctioned on 29th March, 1986, mentions the sale price as Rs.40,000 but the price actually paid .was Rs.28,

000. The suit was resisted by the vendee-petitioner on the plea that he himself was tenant of the land in dispute before the sale and as such the plaintiff under law as against the petitioner does not possess superior right of pre-emption even on the grounds asserted in the plaint. The learned trial Court after framing necessary issues and recording evidence of the parties decreed the suit vide judgment and decree dated 14-10-1987. The petitioner filed an appeal against the said decree but the same was dismissed vide judgment and decree dated 11-5-1988. This led to the filing of the present revision petition.

2. Learned counsel in support of the revision petition contended that no decree of pre-emption even on the ground of co-sharership can be granted by a Civil Court after 31st July, 1986. Reliance was placed in this respect on Sultan v. Habib Ahmad PLD 1990 SC

897. It was argued that the impugned judgments and decrees are unsustainable and, therefore, be set aside and the suit be dismissed. Learned counsel for the respondent-pre-emption decree holder on the other hand maintained that Act I of 1913 remained in operation to the extent mentioned in Ahmad v. Abdul Aziz PLD 1989 SC_771 as in this judgment it was held that right of co-sharer was not affected by the judgment in Said Kamal's case PLD 1986 SC

360. He argued that legislature by repealing Act, I of 1913 firstly by Ordinance V of 1990 with effect from 29-3-1990 and then by Act IX of 1991, with effect from 6-4-1991, has rendered ineffective judgment of the Shariat Appellate Bench of the Supreme Court in Said Kanial's case PLD 1986 SC 360 whereby it was held that sections 15 and 30 of the Punjab Pre-emption Act, 1913, ceased to have effect from 1st August, 1986. It was added that the manifest intention of the legislature must prevail and Act I of 1913 has to be taken to have been repealed neither in part nor as a whole after 1st August, . 1986, but from the dates mentioned in the aforesaid two legislative measures. Syed Zainul Abidin, learned counsel for the respondent, further submitted that sections 34(2) and 35 do not provide for a case in which decree was passed between 1-8-1986 and 28-3-1990 on the ground of co-sharership. Learned counsel submitted that the legislature intentionally made no provision in the new pre emption law respecting suits of pre-emption which were decreed in the afore noted period as such decrees were validly and legally granted in view of the observations made by the Supreme Court in the case of Ahmad v. Abdul Aziz (supra). It was added that challenge made to these decrees by filing appeal or revision is to be determined and decided iii accordance with the Punjab Pre-emption Act, 1913. Such decrees thus stand at a better footing than the decrees of dismissal of suits passed in the said period as the rights of the pre-emptors who had succeeded in obtaining decrees of pre-emption were not touched but for the unsuccessful pre-emptors section 35 provided that their cases will be decided in accordance with the Punjab Pre-emption Act, 1991. Learned counsel also referred to the case of Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 to contend that the decree passed can only be scrutinized under the Punjab Pre-emption Act, 1913. 3. 1 have considered the respective submissions of the learned counsel for the parties. The plea that by manifestly repealing the Punjab Pre-emption Act, 1913, by virtue of section 34 of the Punjab Pre-emption Ordinance, 1990 (V of 1990) the judgments of the Supreme Court and Shariat Appellate Bench were rendered ineffective is without merit. The effect of repeal of Act I of 1913 was considered by the Supreme Court in the case of Mst. Aziz Begum v Federation of Pakistan PLD 1990 SC 899 and the finding returned reads a under:-- "The decision given by the Shariat Appellate Bench rendering the whole of section 15 and whole of section 30 of the Pre-emption Act, repugnant to Injunctions of Islam and these provisions ceasing to have effect as from 31-7-1986, leaves no right available for enforcing the right of pre-emption during that period. The Punjab Ordinance No. V of 1990 makes no provision for this interregnum and the mere use of the word 'repeal' for a law which has ceased to have effect could not be sufficient to revive or to give the impression of existence and effectiveness of any such law rendered ineffective by the decision of the Shariat Appellate Bench...."

4. It may be pointed out that the legislature had to provide for repeal of the Punjab Pre-emption Act, 1913 (1 of 1913) as the Shariat Appellate Bench in suo motu review had' inter alia declared as under:-- ,:wq, rl Ly.'., 4!.G. L 't-, JLX .4- ~W (r ) i I A -1 IS' J! 1 J,)

5. It may be recapitulated that the provisions of sections 15 and 30 of the Punjab Pre-emption Act ceased to have effect in law in view of the declaration made in Said Kamal's case (supra) by virtue of Article 203-D of the Constitution of the Islamic Republic of Pakistan and as a consequence of the declaration made the Punjab Pre-emption Act, 1913 was rendered impracticable. It will, therefore, be seen that though the other provisions of the Punjab Pre-emption Act, 1913 remained part of the statute book but were dead letter being ineffective practically. So the dead and gone provisions were buried in the debris of obsolete legislation by the repealing provision. The repeal was directed so as to remove the legally ineffective provisions from the statute book.

6. The case of Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 is also distinguishable as in that case first decree of dismissal was passed before 1-8-1986 whereas in the instant case the first decree was passed on 14-10-1987 i.e. after 1-8-1986. The provision of section 35 is also not available as the provision contained in subsection (1) of section 35 applies to decrees, judgments, orders of dismissal of the suits instituted or pending between the first day of August, 1986, and 28th March, 1990. The decree passed on 14-10-1987 in this me as per judgment of the Supreme B Court in the case of Sultan v. Habib Ahmad PLD 1990 SC 897 was without' jurisdiction. The observations made in the afore noted judgment read as under: "In this case, the pre-emption suit was filed by a co-sharer. However, this suit based on his superior right on the ground of being co-sharer of the suit land was decreed by the trial Court for the first time on 13-12-1987. This could not have been done as explained in the recent judgment of the Shariat Appellate Bench on 26-5-1990 (PLD 1990 SC 865)." The basis appears to be that there was no contemporaneous law to back the decree. The plea that as the new pre-emption law made no provision with respect to decrees of pre-emption passed after 1st August, 1986 as such appeals or revisions filed against such decrees are to be regulated and decided by Punjab Pre-emption Act, 1913, has also no merit. Obviously the decrees passed in this period (from 1st August, 1986 to 28th March, 1990) would hold the field if the same have not been challenged in accordance with law. On the other hand, if the decree has been assailed in appropriate forum by, initiating appropriate proceedings in accordance with law then the law will have its own course. Such a decree passed in this period when no law of preemption existed, being without jurisdiction will be set aside and the suit will have to be treated to be still pending and the suit will have to be decided in accordance with the new law. In this manner the suit in which the decree was illegally passed and the suit which was dismissed will be rendered at par and will have to be decided in accordance with the new pre-emption law. The only difference would be that where the suit has been dismissed in the interregnum the application is to be made within the prescribed time but here the question of filing an application for seeking amendment of the plaint and to make averments regarding Talabs will arise only after the suit becomes pending. Such an application if filed will have to be disposed of in accordance with law I keeping in view, however, the fact that the new law intends to give the parties an opportunity to raise such pleas and to substantiate the same by producing evidence.

7. For the reasons given above both the judgments and decrees of the learned Courts below are set aside. The suit will be treated to be still pending and shall be proceeded with in accordance with law. The parties are left to bear their own cost. AA./A-229/L Order accordingly,