1993 PLP 2053 (CLC)

‑‑‑‑S. 36‑‑‑Revival of pre‑emption suit instituted or pending and dismissed during interregnum from 1st August, 1986 to '28th March, 1990‑‑‑Limitation‑‑ Such suit could be revived on application filed within sixty days for decision in accordance with the Act of 1991 fashioned on the. pattern of Islamic Jurisprudence and the period of limitation prescribed for enforcing pre emptive right was one year ‑‑‑Pre‑emption suit, having been instituted within one year of the date of sanctioned sale mutation, such suit, thus, could not be deemed to be barred by limitation prescribed by law‑‑‑Dismissal of pre emption suit by Trial Court on the ground that period of limitation prescribed for such suit was four months and not one year, was not warranted by law‑‑ Remand of case by first Appellate Court on the ground that period of limitation for such suit was one year was correct‑‑‑Question whether performance of necessary Talabs was effected by the pre‑emptor, same could properly be resolved on evidence by the parties. Mazhar Hussain Bokhari for Petitioner. Civil Revision was against an order of remand by learned District Judge, Toba Tek Singh for re‑trial of the pre‑emption suit on merits. It arises from the facts stated below: Nazir Ahmad sold 4 Kanals. 9 Marlas to Miran Bakhsh for a sum of Rs.45,000 vide Mutation No. 310, attested on 31‑8‑1988. Bashir Ahmad claimed pre‑emption in respect of the sale. Pre‑emption suit was instituted by him on 20‑8‑1989. Upon being served in the suit, defendant submitted his written statement. Among other pleas taken in defence, it was averred that suit was barred by limitation. Trial Court raised necessary issues for determination. Before evidence could be taken on them, defendant submitted a miscellaneous petition on 24‑11‑1990 on the ground that since the suit was barred by limitation and necessary Talabs were not performed in accordance with law, pre‑emption suit may be summarily dismissed. Pre‑emptor resisted the application. By order dated 2‑12‑1990, the trial Court dismissed the pre emption suit, on the score of objections taker. in the miscellaneous petition. Pre‑emptor preferred an appeal. It was allowed on 10‑1‑1993, in the manner indicated above. It was held that suit was not barred by limitation having been filed within one year from the date of the pre‑emptive sale and as for performance of Talabs, the matter could be resolved on taking evidence from the parties. Aggrieved of the remand, defendant came up in revision to this Court. It was common ground that the sale took place and pre‑emption suit respecting it was instituted during the interregnum when the statutory law of pre‑emption was rendered obsolete and unworkable. Punjab Pre‑emption Ordinance V of 1990, came in force, on 29th March, 1990. It was followed by Punjab Pre‑emption Ordinance, 1990, on 29th May, 1990. Both the Ordinances did not contain any saving for the sales and pre‑emption suits during the period from Ist August 1986 to 28th March 1990. For the first time, Punjab Pre‑emption Ordinance, 1990 (Ordinance XVIII of 1990), subsection (2) of section 36 provided a period of limitation of two hundred and forty days for the pre‑emption suits filed, pending and, dismissed during interregnum from Ist August, 1986 to 28th March, 1990. Subsection (2) of section 36 of Punjab Pre‑emption Ordinance, 1990 (Ordinance XXVII of 1990) provided a similar saving in favour of a period of limitation of one year. Thereafter, Punjab Ordinance IX of 1991 and Punjab Act IX of 1991 contained identical‑ provision for limitation of one year. In terms of saving clause contained in section 36(2), pre‑emption suits instituted or pending and dismissed during interregnum from 1st August, 1986 to 28th March 1990 could be revived on an application filed within sixty days for decision in accordance with the new Pre‑emption Laws fashioned on the pattern of Islamic Jurisprudence and the period of limitation prescribed for enforcing pre‑emptive right was one year. A fortiori, period of limitation prescribed for a pr‑emption suit for the kind was one year and not four months as held in the trial Court. Admittedly, pre‑emption suit was instituted within one year of the date of the sanctioned sale mutation. Therefore, it could not be held barred by limitation prescribed by Law. View taken by the lower appellate Court was correct in this behalf and I would agree with it. As for the performance of necessary Talabs by the pre‑emptor, learned appellate Court rightly observed that it could properly be resolved can evidence by the parties. Therefore, there was no occasion to interfere; with the remand order. Civil Revision is consequently dismissed in limine. AA./M‑1087/L Revision dismissed.