1996 PLP 1457 (CLC)

Petitioners, Zarbadsha and others in C.Rs. Nos.263 of 1994 and 264 of 1994 are aggrieved of an order dated 3‑3‑1994 passed by the learned Additional District Judge, Peshawar, holding pre‑emption suits of the respondents within time, remanded the cases to the Trial Court for decision afresh. Since both the revisions involve same question of law and facts they are, therefore, disposed of by this single judgment.

2. The brief facts giving rise to present revisions are that respondent, Muhammad Nawaz, challenged the sale of land measuring 30 Kanals 4 Marlas effected through Mutations Nos. 904 and 905 attested on 26‑10‑1991, by filing suits in Court of Senior Civil Judge, Peshawar on 13‑10‑1992. During the pendency of suits, petitioners‑defendants filed applications for the dismissal of suits being time‑barred on the basis of Amendment Act X of 1992. The applications prevailed with the learned Trial Court who vide order dated 28‑7‑1993 dismissed both the suits of respondents‑plaintiffs. Appeals against the order of the Trial Court weighed with the learned Additional District judge declaring the suits to be within time and thus remitted the cases for decision on merits, thus obliging the petitioners to invoke revisional jurisdiction of this Court. .

3. Learned counsel for the parties have been heard at a considerable length. and record has been perused.

4. The moot question for determination is whether the sale effected before the enforcement of Amendment Act X of 1992, in section 31 of the Pre‑emption Act, 1987, published in official Gazette on 16‑12‑1992, with retrospective effect from 31‑12‑1991, providing 120 days to the pre‑emptor to exercise his right of pre‑emption, would be hit by limitation or not.

5. Qazi Zakiuddin, learned counsel for the petitioners, contended that sale of the pre‑empted land, even before the cut off date of amendment, i.e. 31‑12‑1991 ‑if not challenged within 120 days, would be time‑barred as amendment in section 31 is made only to the extent of substitution of period of limitation from one year to 120 days. On the other hand Mr. Abdul Sattar Khan, learned counsel for the respondent, argued that at the time of sale, dated 26‑10‑1991, in question the amendment was not in place, therefore, limitation period would be governed by Pre‑emption Act, 1987, in which one year is provided from the date of registration of the sale‑deed. 6. 1 feel persuaded, by the arguments of the learned counsel .for the petitioners. The amendment in section 31 of the Pre‑emption Act lays down that the period of limitation for a suit to enforce a right of pre‑emption shall be 120 days from the date‑‑ (a) of the registration of the sale‑deed; or (b) of the attestation of the mutation; or (c) on which the vendee takes physical possession of the property; or (d) of knowledge by the pre‑emptor, if the sale is not covered under paragraph(a) or paragraph(b) or paragraph(c). The amendment Act X of 1992 clearly provides that in counting the period of limitation prescribed for a suit of pre‑emption it shall be 120 days from the day of the sale within which the pre‑emptor can exercise his right of pre‑emption which has been given effect from 31‑12‑1991. The sale even before A 31‑12‑1991 shall be time‑barred if not challenged within 120 days. The sale in the instant case was effected on 26‑10‑1991 and the suits challenging the sale were instituted on 13‑10‑1992, Le, about ten months of the target date of 31‑12‑1991 which are apparently time‑barred. Now reverting to the applications for , condonation of delay, the learned counsel for the respondent/applicant argued that at the time of filing of the suits the amending act was not enforced and the applicant could not have known the expected legislation,, therefore, the time if barred may be condoned. This argument of the learned counsel for the applicant has no weight for the simple reason that provisions of law on the subject‑matter is very clear. The amendment Act X of 1992 has made it clear that suit filed beyond 120 days shall be barred by time still respondent filed suits after almost one year which cannot be termed that he acted with due diligence and it was his bona fide mistake. therefore, condonation of delay under section 5 or 14 cannot be granted. As regards section

151. C.P.C. it can only be exercised when there is abuse of the process of the Court. There is no such circumstance in this case which could obstruct the ends of justice. In view of above these revision petitions are accepted and the order dated 3‑3‑1994 of the Appellate Court is set aside and that of the Trial Court is restored. However, the parties are left to bear their own Courts. A.A./1927/P Revision accepted.