2013 PLP 993 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision petitioners have challenged the judgment and decree passed by the learned Addl. District Judge Bahawalnagar dated 12-11-1996 whereby the appeal filed by the petitioners was dismissed against the judgment and decree passed by the learned Civil Judge Minchinabad dated 22-10-1992 whereby suit filed by respondent was decreed.

2. The brief facts of the case are that the respondent on 26-9-1988 filed a suit for pre-emption to pre-empt the sale through Mutation No.308 attested on 30-1-1988. The defendants/petitioners were summoned. They filed their written statement. Issues were framed. The parties produced their respective evidence but suit was dismissed on 23-6-1990 on the basis of Judgment of the August Supreme of Pakistan. Then after coming into force the Pre-emption Ordinance, 1990 respondent/plaintiff filed an application for restoration of the suit. The petitioners/defendants contested the application but on 19-5-1991 on the statement of counsel for the defendants suit was restored. The learned trial Court on 22-10-1992 decreed the suit. The appeal was filed by the petitioners which was dismissed on 12-11-1996. Hence this civil revision.

3. Learned counsel for the petitioners has mainly contended that the application filed under section 35 of the Pre-emption Ordinance, 1990 was barred by time. Further that the suit is not liable to be decreed under the new law of pre-emption i.e. the Punjab Pre-emption Act, 1991. States that notice has not been given and Talbs had not been fulfilled in accordance with the plaint. Further that Zarar and Zaroorat was not pleaded in the plaint.

4. On the other hand learned counsel for the respondent states that the petitioners cannot state that the application for revival of the suit was time-barred, the application was accepted on the statement of the learned counsel for the defendants/ petitioners with costs. Further that Zarar or Zaroorat were not required to be pleaded. Further that he has proved the case according to the evidence on record and that the learned trial Court had rightly decreed the suit in favour of the respondent/ plaintiff and the appeal has rightly been dismissed by the learned Addl. District Judge.

5. I have heard the learned counsel for the parties and perused the record.

6. No doubt the application filed by the plaintiff/respondent for revival of the suit, in accordance with Pre-emption Ordinance, 1990, was accepted on 19-5-1991 on the statement of the learned counsel for the defendants/petitioners subject to payment of costs of Rs.500 therefore, this objection for filing application after the period of limitation is not available to the petitioners, as with their consent the suit was revived in accordance with law. Petitioners were required to prove Talb-e-Ishhad in presence of two truthful witnesses. The learned Courts below have discussed in detail the evidence with regard to Talb-e-Ishhad. It on the file. The witnesses are available with regard to Talb-e-Ishhad. It is also not disputed that sale and filing of suit relate to interregnum period and suit will be governed in accordance with section 35 of the pre-emption Act, 1991.

7. I have minutely scrutinized the record and have also gone through the judgments and decrees passed by both the courts below.

8. As Zarar and Zaroorat was not required to be pleaded in accordance with Mohammedan Law by Mulla's, as in the interregnum period i.e. the first day of August, 1986 till 28th March, 1990 Mohammedan Law was applicable. No codified law of pre-emption was in existence. Therefore, objection of the learned counsel for the petitioner with regard to pleadings of Zarar and Zaroorat is without any backing of law, therefore, same is repelled, because Zarar and Zaroorat was not required in accordance with Mohammedan Law and as I have already observed that in the interregnum period Mohammedan Law was in field. Furthermore Zarar and Zaroorat has been declared by the August Supreme Court of Pakistan as reported in Rana Muhammad Shabbir Ahmad Khan versus Government of Punjab Province, Lahore (PLD 1994 SC 01) being repugnant to the Injunctions of Islam and declared section 6(2) of the Punjab Pre-emption Act, 1991 as such.

9. Learned counsel for the petitioners has not agitated any other point before this Court. Furthermore, the learned counsel for the petitioners failed to show any misreading or non-reading on the part of both the Courts below. There are concurrent findings of facts recorded by both the courts below against the petitioners, they have failed to show any defect in the findings on facts and law recorded by the learned courts below. In this view of the matter this revision is dismissed leaving the parties to bear their own costs. KMZ/N-23/L Revision dismissed.