1994 PLP 2297 (SCMR)

‑‑‑S. 35‑‑‑Restoration of pre‑emption suit/plaint‑‑‑Application for restoration of plaint which had been dismissed/rejected during the period from 1‑8‑1986 to 28‑3‑1990, had to be filed within sixty days from the date of enforcement of the Act viz. 31‑3‑1991‑‑‑Plaintiff having filed his such application on 29‑7‑1991, same was barred by time. (b) Punjab Pre‑emption Act (IX of 1991)‑‑‑ ‑‑‑‑S. 35‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑Restoration of pre‑emption suit/plaint‑‑‑Time specified by S. 35 of the Punjab Pre‑emption Act, 1991 could not be extended, for S. 5, Limitation Act, 1908 could not be pressed into service in circumstances. Taki Ahmad Khan and Ch. Mehdi Khan Mehtab, Advocate‑on- Record for Petitioner. S. Abul Asim Jafri, Advocate‑on‑Record and Khan Muhammad Bajwa, Advocate Supreme Court for Respondents Nos. 2 and

3. Date of hearing: 8th January, 1994. SALEEM AKHTAR, J: ‑‑The petitioner seeks leave to appeal against the judgment passed by the learned Judge in Chambers of the High Court dismissing the writ petition filed by him challenging order dated 2‑3‑1992 passed by the learned Additional District Judge, Sialkot, whereby he allowed the revision petition against order dated 28‑i1‑1991 passed by the learned Civil Judge, Sialkot accepting the application for restoration of the suit filed by the petitioner for possession through pre‑emption.

2. The petitioner had filed a suit on 8‑8‑1989 which was contested by respondents Nos. 2 and 3 and on their application under Order VII, rule 11, C.P.C. the plaint was rejected on 25‑7‑1990 on the ground that the suit was not maintainable in view of the judgment of the Supreme Court in Government of N: W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) wherein it was held that the Punjab Pre‑emption Act, 1913 and N: W.F.P. Pre‑emption Act, 1950 were Contrary to Islamic Injunctions. On 29‑2‑1991 the petitioner filed application under section 35 of the Punjab Pre‑emption Act, 1991 which was by order dated 28‑11‑1991 allowed and the suit was restored. Respondents Nos. 2 and 3 challenged this order in revision application which was allowed and the order of learned trial Court was set aside by judgment dated 2‑3‑1992 holding that application under section 35(2) of the Punjab Pre‑emption Act, 1991 was filed after the expiry of 60 days from 31‑3‑1991 when the said Act came into force. The petitioner challenged this judgment in the Constitution petition before the High Court which was dismissed by the impugned judgment.

3. The learned counsel for the petitioner contended that the suit was maintainable under the Muslim Personal Law. This contention was raised by the petitioner's learned counsel before the High Court and with reference to several judgments of this Court and the High Court it was rejected. The promulgation of the Act of 1991 had takes over the field and therefore no resort to Muslim Personal Law could be taken. It may be noted that under section 36 of Ordinance XVIII of 1990 all the decrees, judgments or orders dismissing the suits for pre‑emption instituted or pending during the period from 1‑8‑1986 to 28‑3‑1990 in which the right of pre‑emption was claimed as was available under that Ordinance shall be of no legal effect. However, it was provided that such suits, on an application made by an aggrieved person within 60 days of the commencement of the Ordinance, shall subject to subsection (2) be decided afresh according to the provisions thereof. However, under section 35 of the Punjab Pre‑emption Act, 1991 a period of 60 days for filing the application for restoration of the plaint from the date of enforcement of the Act, namely 31‑3‑1991 was allowed. The petitioner filed application on 29‑7‑1991, which was clearly barred by time. In view of these provisions, the provisions of Muslim Personal Law could not be pressed into service.

4. The learned counsel contended that the learned trial Court had condoned the delay, but the revisional Court wrongly took the view that section 5 of the Limitation Act was not applicable. This has been upheld by the impugned judgment and in our view, in the facts and circumstances of the case, section 5 of the Limitation Act could not be pressed into service. We find no force in the petition and refuse to grant leave. A.A./M‑2010/S. Leave refused.