1987 PLP 686 (SCMR)

‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Argument that Shariat Appellate Bench of Supreme Court having declared certain grounds for pre‑emption in some laws of Pakistan as being against Quran and Sunnah, decree on basis of right of pre‑emption passed in favour of respondent even if confirmed up to High Court had become a nullity‑ Impugned High Court decision, being prior to target date fixed by Shariat Appellate Bench of Supreme Court, such argument, held, was without any force‑‑Petition for leave to appeal dismissed. Government of N.‑W.F.P. v. Said Kamal Shah P L D 1986 S C 360; Piran Ditta v. Member Revenue Board, etc. K L R 1987 Civil Cases 89 and Abdullah Khan v. Member, Board of Revenue N.‑W.F.P. and others 1986 S C M R 2006 ref. Bashir A. Mujahid, Barrister‑at‑Law, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners. Rana M. Sarwar, Advocate Supreme Court with S. Inayat Hussain Advocate‑on‑Record for Respondent. Date of hearing: 24th January, 1986. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 11‑6‑1985 of the Lahore High Court; whereby petitioners/ vendees second appeal arising out of a pre‑emption decree passed in favour of the respondent, was dismissed.

2. Learned counsel for the petitioners has raised only two points in support of this petition. One, that the learned trial Judge while decreeing the respondents suit made the decree dated 8‑4‑1981 conditional to the effect that if the deficient court‑fee was not paid uptil 8‑5‑1985 the plaint shall stand rejected under Order VII, Rule 11, C.P.C. This according to the learned counsel was illegal. The respondent (pre‑emptor)/decree‑holder could not have been allowed the time to make up the deficiency at the time of the passing of the decree.

3. The argument runs counter to the rules laid down by this Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 S C

289. It has, therefore, no force.

4. The second argument raised by the learned counsel is that the Shariat Appellate Bench of this Court having declared certain grounds for pre‑emption in some laws of Pakistan as being against Quran and Sunnah in Government of N.‑W.F.P. v. Said Kamal Shah P L D 1986 SC 360, the decree on the basis of right of pre‑emption passed in favour of the respondent even if affirmed up to the High Court has become a nullity. He has cited Khushi Muhammad and 3 others v. Sher Muhammad and others 1987 S C M R 129 to show that even if the judgment of the High Court was passed before the target date fixed by the Shariat Appellate Bench of the Supreme Court, it would require examination whether the decree had not become a nullity. This Court in a very recent judgment rendered on 14‑12‑1986, Piran Ditta v. Member Revenue Board, etc. K L R 1987 Civil Cases 89, after making reference to Abdullah Khan v. Member, Board of Revenue N.‑W.F.P. and others 1986 S C M R 2006 and another case Sher Muhammad v. Samundar Khan 1987 S C M R 108 had observed that the date of the decision of the High Court being before the target date fixed by the Shariat Appellate Bench of the Supreme Court, the matter had become past and closed; therefore, the leave to appeal was refused. In this case also the impugned High Court decision is prior to the target date fixed by the Shariat Appellate Bench of the Supreme Court, therefore, there is no force in the second argument either. This petition fails and is accordingly dismissed. S.Q. /F‑3/S Petition dismissed