P L D 1990 Lahore 201 (PLP)

This appeal has arisen out of a pre‑emption suit, which was dismissed on 21st December, 1988, by a Civil Judge, for the reason that necessary Talabs (demands for getting the land 'sold to another) had not been made by the appellant, Fazal Muhammad alias Fazla, before filing the suit, on the ground that he was a co‑sharer of the land pre‑empted by him. Appellant went in appeal before an Additional District Judge which also met with the same fate on 25th March, 1989. Now, he has preferred this second appeal on 25th, October, 1989, which is clearly time‑barred.

2. The appellant has moved C.M.No.4762‑C of 1989 for condonation of delay in filing the appeal. Reasons given by the appellant in support of his plea are that after the dismissal of his first appeal, his counsel advised him not to go in for second appeal in view of the case‑law then holding the field. According to the appellant, he is an illiterate person residing in a suburb of Kamalia town where he learnt on 8th October, 1989, from a friend, that the Supreme Court had changed its view and dispensed with the requirement of Talabs in suits like the one filed by him. On the same day, therefore, he filed an application for supply of copies of judgment and decree passed by the learned Additional District Judge which were made available to him on 10th October, 1989 and then he came to Lahore and engaged a counsel on 13th October, 1989, who after preparing his case, filed this appeal on 25th October, 1989.

3. It was submitted by learned counsel for the appellant that since the "law remained in a fluctuating state inasmuch as more than six judgments on point were passed by the superior Courts" and the latest pronouncement has been made in Ahmad v. Abdul Aziz PLD 1989 Supreme Court 771 so as to enable a co‑sharer to claim right of pre‑emption without making Talabs, the appellant is entitled to indulgence in the matter of limitation. Reliance is placed by him on East and West Steamship Company v. Queensland Insurance Co, Ltd. PLD 1961 (W.P.) Kar. 317, Gulab Chand v. Abbas Ali AIR 1917 Patna 239 and Rajani Kanta Kayal and others v. Bistoo Moni Dassi AIR 1927 Calcutta

718. His submission is that since delay on the part of the appellant was not intentional, it deserves to be condoned.

4. In the case of East and West Steamship Company it was held by the erstwhile High Court of West Pakistan that where an appellant is misled by conflicting decisions and prevailing practice it is a good ground for condonation of delay. In Gulab Chand's case, delay in presenting an appeal was condoned due to conflicting decisions of the High Court. In the case of Rajani Kanta Kayal and others, the view expressed was that time should be extended where an appellant is probably misled due to decision of High Court giving different opinions of two Judges about limitation.

5. It is a matter of common knowledge that after pronouncement of judgment in Government of N.W.F,P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1996 Supreme Court 360 (Shariat Appellate Bench), recognising three qualifications only for claiming right of pre‑emption, conflicting views were expressed at the level of High Courts with regard to the effect of that judgment on pending cases. Ultimately, it was held by the Supreme Court in Sardar Ali and others v. Muhammad Ali and others PLD 198( 9 Supreme Court 287 that in cases in which decrees were passed in favour of pre‑emptors before 31st July, 1986, the target date mentioned in the case of Government of N.‑W.F.P. through Secretary, Law Department, the old law as existing before the decision of ' the case of Government of N.‑W.F.P. through Secretary, Law Department, will apply but in other cases the law as laid down in the last mentioned case shall be followed. It was also ruled in Sher Muhammad and another v. Allah Ditta and 2 others PLD 1989 Supreme Court 412 and Barkat Ali v. Khan Muhammad and another 19M SCMR 1800 (1) that a suit of the pre emption based on any or all of the said three qualifications also could not succeed if Talabs had not been made in compliance with the injunctions of Islam. Despite these pronouncements, pre‑emptors went on struggling to get over the difficulty of Talabs. In this regard, proceedings were taken out before the Supreme Court and it was eventually held by the Supreme Court on 4th September, 1989, in the said case of Ahmad, that making of Talabs was not necessary in a suit of pre emption. All this is enough to demonstrate that the appellant is not to blame for not coming to this Court, in second appeal, immediately after dismissal of his first appeal by the learned Additional District Judge. He was not far wrong in adopting the policy of "wait and see . After coming to know of the latest verdict of the Supreme Court regarding Talabs, he did not delay the matter and came to this Court as people normally do filing of this appeal deserves to be condoned.

6. Similar view was taken by me on 7th February ,1990. While dealing with Civil Revision No.63‑D, of 199k Raja Zahir Ahmad V. Ghulam Mustafa at Rawalpindi Bench. My learned brother Amjad Khan, J. also condoned delay in R.S.A. No.66 of 1989/BWP, Said Ali Shah v. Badshalizadi Bibi etc., R.S.A. No.4 of 1990/BWP., Abdul Rahim v. Muhammad Bakhsh etc., R.S.A. No. 76 of 1989/BWP., Saleh Muhammad etc, v. Jam Atar and R.S.A. No. 72 of 1989/BWP. Mst. Haseena etc. v. Ghulam Muhammad etc., on account of the "fluid state law of pre‑emption". His order, dated the 14th January, 1990, in the case of Abdul Rahim reads as follows:‑‑ "To seek condonation of delay in this second appeal maintained on 4‑1 1990, it is submitted that no plea of substance may possibly have been urged in the then prevailing fluid state of the law of pre‑emption for promptly maintaining this appeal which could only have turned into an exercise in mere futility and thus it became necessary to await the latest view on the points under consideration with the Supreme Court which was published in the month of November, as Ahmad v. Abdul Aziz PLD 1989 SC

771. Therefore, condonation of delay in maintaining this appeal is granted."

7. In view of what has gone above, delay in filing of this appeal is condoned. C.M.No.4762‑C of 1990 is disposed of.

8. Learned counsel inter alia contends that according to dictum of the Supreme Court in said case of Ahmad, judgments and decrees passed by the learned lower Courts, dismissing the suit on the ground that the appellant had not made requisite Talabs before filing the suit, are not sustainable. This plea needs consideration.

9. Admit. Notice.

10. Since a short question is involved in this case it shall come up on 4th March, 1990, for final hearing.

11. The District Judge concerned shall be asked to take special steps for timely service of notices on the respondents.

12. Learned counsel does not press C.M.4763‑C of 1989. It is disposed of accordingly. AA./F‑188/L Order accordingly.