1990 PLP 1601 (CLC)

Date of hearing: 14th April, 1990. Arbab Musafir Khan, plaintiff/predecessor‑in‑interest of Arbab Jehangir Khan and others, petitioners herein, filed suit for possession through pre‑emption of land measuring 49 kanals 1 marla out of several khasra numbers mentioned in the heading of the plaint, situated in village Garhi Sher Dad, Tehsil and District Peshawar, against Abdul Rauf Khan and Samar Gul Khan, defendants/ respondents herein on the grounds of co‑sharership, participator in immunities and apendages such as right of way and right to discharge water and ownership in the contiguous property. The same was contested by the defendants/respondents and they, in their written statement, controverted all the allegations of the plaintiffs/petitioners. Necessary issues in the case were framed and after recording the statement of the Patwari Halqa as P.W. 1 the case lingered on for one reaon or the other when the judgments of the Supreme Curt reported as (P L D 1988 Supreme Court 287) etc were pronounced. Consequently the learned trial Judge framed the following legal issue in the case on 6‑3‑1989: "Whether under the prevalent Islamic Law of Pre‑emption and in the light of latest Authorities of the Supreme Court this suit is liable to dismissal." After hearing the arguments of the learned counsel for the parties, the learned trial Judge, vide his judgment and decree dated 1‑4‑1989, dismissed the suit of the plaintiffs/petitioners on account of the non‑observance of the provisions of `Talab' as ordained in the Islamic Law of Pre‑emption, in the light of the dictum of the august Supreme Court in cases reported as P L D 1988 Supreme Court 287, P L D 1988 Supreme Court: 355, P L D 1988 Supreme Court 730 etc. Dissatisfied with the same, the plaintiffs/petitioners preferred appeal before the learned District Judge, Peshawar who too had no option but to dismiss the appeal in view of the clear direction of the Supreme Court in the aforementioned judgments, as per his judgment and decree dated 1‑6‑1989. Hence the instant revision petition.

2. I have heard Mr. Abdul Mahbood Khan Khattak Advocate learned counsel for the plaintiffs/petitioners, Haji Z. Mafooz Khan Advocate learned counsel for the defendants/respondents and have perused the record of the case with their assistance.

3. The learned counsel for the defendants/respondents raised a preliminary objection that the revision petition, having been filed beyond 90 days was hopelessly barred by time and that the application filed by the plaintiffs/petitioners for the condonation of delay under section 5 of the Limitation Act is legally not entertainable. In reply to the same the learned counsel for the plaintiffs/petitioners strenuously argued that there is no statutory provision either in the Limitation Act or in the High Court Rules and Orders providing time for filing of revision petition under section 115 of the Civil Procedure Code. He also submitted that even if the limitation prescribed for filing appeal is considered to be period for filing revision petition as well, even then the plaintiffs/petitioners had sufficient cause in not invoking the revisional jurisdiction of this Court within the said period. Both the learned counsel cited authorities in support of their respective arguments.

4. Admittedly the impugned judgments were pronounced after the judgment of the Appellate Shariat Bench of the Supreme Court in case `Government of N.W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah' reported as (P L D 1986 Supreme Court 360) and the subsequent judgments of the august Supreme Court relied upon by the lower two forums and if the august Supreme Court had not reviewed the view expressed in these judgments, the impugned judgments were perfectlly legal and unassailable and if the Revision Petition had been filed in time and had come up for consideration before this Court, it too would have been dismissed. To the good luck of the pre emptors the matter was reconsidered by the Supreme Court in case, "Ahmad v. Abdul Aziz (P L D 1989 SC 771) through the exercise of their review powers and it was observed that the Appellate Shariat Bench in Malik Said Kamal Shah's case had only declared certain provisions of the pre‑emption laws as repugnant to the injunction of Quran and Sunnah and never intended to engraft or import anything else into it which were neither in issue before them nor adjudicated upon, with the result that the requirement of `Talab' could not be deemed to have been engrafted in the text of the Pre‑emption Laws prevalent prior to the pronouncement of the said judgment. Since the provincial legislature of N.W.F.P. had passed a new law of Pre‑emption known as N.W.F.P. Pre‑emption Act, 1987 which repealed the previous Law of Pre‑emption (N.W.F.P. Pre emption Act, 1950) and section 13 of the new Act had specifically provided that the right of pre‑emption of a pre‑emptor shall be extinguished if the demands of pre‑emption, according to Islamic Law of Pre‑emption, were not made. Its effect on the pending cases required consideration for which a Division Bench of this Court was constituted which gave its decision in a case `Kundal Khan v. Agha Jan' reported as (P L D 1990 Peshawar 21) whereby neither the new Pre‑emption Act nor section 13 thereof was held to be retrospective in nature. The conjoint readings of the judgment of the august Supreme Court as well as of this Court referred to above make it clear that all the pending pre‑emption cases, instituted prior to 28‑4‑1987, the date of enforcement of the new Act, could not be hit by the non‑observance of the provision of `Talab' and in consequence the impugned' judgments and decrees are liable to be annulled.

5. There is no statutory provision providing limitation for filing an application under section 115 of the Civil Procedure Code by the aggrieved person nor there is any Rules or Orders to this effect under the High Court Rules and Orders. In this respect the dictum of the Supreme Court in case, "Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another", reported as P L D 1975 Supreme Court 678 is illuminating, the relevant paragraph of which is being reproduced for ready reference as follows: "S.115‑‑‑Limitation‑‑‑No limitation prescribed by Limitation Act, 1908 nor by any rule in High Court Rules and Orders (Lahore) for filing petition under S. 115‑‑High Court could entertain petition even beyond normal unprescribed period of 90 days if satisfied as regards delay in filing petition. Under section 115, C.P.C. the principle laid down in the various authorities is that revision petition filed beyond the unprescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay. It may also be relevantly mentioned in this context that no rule has been framed by any High Court under its rule‑making powers prescribing limitation for revision." Consequently there is no legal impediment in the exercise of revisional powers by this Court under section 115, C.P.C. to go into the legality or otherwise of the judgments and decrees of the lower two forums in view of the changed circumstances and legal position.

6. Nevertheless, assuming without conceding that the revision petition has not been instituted within 90 days according to the practice in vogue since time immemorial even then there is substantial cause for the condonation of delay inasmuch as the plaintiffs/petitioners genuinely presumed that the judgments of the Supreme Court in Ahmad's case and others were final and in that belief rightly did not consider it worthwhile and advisable to challenge the impugned judgments before the superior Courts as it would have amounted to much ado about nothing. However, in view of the review of the earlier judgments by the Supreme Court and the pronouncement of the judgment of this Court in `Kundal Khan v. Agha Jan' the plaintiffs petitioners had no other remedy open to them but to invoke the revisional jurisdiction of this Court through the instant petition. After the pronouncement of the said judgments there is no abnormal delay in filing of the instant petition after allowing allowance for obtaining certified copies of the necessary documents. Exactly a similar point came up for consideration before the Lahore High Court in case, "Fatal Muhammad alias Fazla v. Ghulam Ali and 2 others", reported as (P L D 1990 Lahore 201) wherein His Lordship Muhammad Ilyas, J. made the following observations: "S. 21‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑Civil Procedure Code (V of 1908), S. 110‑‑Pre‑emption suit‑‑‑Making of Talabs‑‑‑Necessity‑‑‑Second appeal filed beyond limitation ‑‑‑Condonation of delay‑‑‑Justification‑‑ Plaintiff's suit for pre‑emption was dismissed for the reason that necessary Talabs had not been made by him before filing the suit‑‑ Plaintiffs first appeal having been dismissed, he filed second appeal beyond the prescribed period‑‑‑Plaintiff's application for condonation of delay stated therein that after dismissal of his first appeal his counsel advised him not to go in for second appeal in view of the law then holding the field‑‑Held, Law of Pre‑emption remained in fluctuating state till the pronouncement of Supreme Court in Ahmad v. Abdul Aziz reported as P L D 1989 SC 771, which enabled a co‑sharer to claim right of pre‑emption without making Talabs‑‑‑Plaintiff thus could not be blamed for not coming to High Court in second appeal, immediately after dismissal of his first appeal‑‑‑Plaintiff was not wrong in adopting the policy of "wait and see"‑‑‑After coming to know of the latest verdict of Supreme Court regarding "Talabs" plaintiff did not delay the matter unnecessarily and came to High Court as people normally do‑‑‑Delay in filing Second Appeal was thus condoned".

7. In this view of the matter I am of the considered opinion that the plaintiffs/petitioners had sufficient cause for not preferring the instant revision petition within the aforesaid period and are entitled to extension of period under section 5 of the Limitation Act which is hereby allowed. As regards the merits of the case, it has already been discussed above that the judgments relied upon by the lower two forums have already been reviewed by the very Court which passed them and, therefore, the judgments of the subordinate Courts based thereon have to be reconsidered in the exercise of the revisional powers of this Court. Since the 1 lower forums have not given their decision on the issues framed in the case, therefore, the matter has to be sent back to the trial Court for decision on all the issues according to law.

8. Resultantly I accept this revision petition, set aside the impugned judgments and decrees of the lower two forums and remand the case back to the trial Court (Civil Judge Ist Class, Peshawar) for proceeding with the same from the stage at which it was at the time of its impugned judgment. There is no order as to costs. C.M. No.711/89 is accordingly accepted. A.A./1023/P Revision accepted.