1980 PLP 1887 (CLC)

(1) That Azad Kashmir Government has subsequent to the passage of the decree by the District Judge issued the aforementioned notifi cation taking away the right of pre‑emption within Muzaffarabad Municipality which admittedly includes Chhatter Domel wherein the suit land falls and as an appeal is only the continuation of the suit the entire matter stands re‑opened before the appellate Court due to the extinguishments of the right of pre‑emption in the pre‑emptor, and the decree fails; (2) That the change in law even during the pendency of the appeal shall be attracted to a cause before the appellate Court and the matter was required to be decided in view of the notification which has taken away the right of prior purchase.

5. As against this it has been argued on behalf the opposite side that a pre‑emptor is only required to retain his superior right on three dates, i. e. at the time of the purchase of the and; at the time the suit is instituted and at the time when the decree by the trial Court is passed. According. to the learned Advocate after passing of the decree by the trial Court a pre‑emptor is clothed with a vested right and in appeal he is only defending the decree and not exercising his right. 6.In support of the contention that appeal is a continuation of the suit Kh. Bashir Ahmed Farooqi the learned counsel for the appellant has cited F.A. Khan v. The Government of Pakistan (PLD1964SC520); The Province of East Pakistan v. Muhammad Hussain Mia (P L D 1965 S C 1) and Mst. Mariam BIN v. Abdul Hassan and another (P L D 1967 Lah. 354), In the first mentioned case it is observed by Mr. Justice Kaikaus, J. at page 529:‑ "(i) when an appeal is filed the matter becomes sub judice and is reheard by the appellate Court which does not act merely as Court of error; (ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court; (iii) the original and appellate proceedings are steps in one proceedings." In The Province of East Pakistan v. Muhammad Hossain Mia it is observed at page 14:‑‑ "On the filing of the appeal the entire matter became re‑opened and sub judice and had to be decided in accordance with the law then prevailing." In Mst. Mariam Bibi v. Abdul Hassan and another it is observed at pages 356 and 357: . "Moreover, we are of the view that appeal is a continuation of the pro ceedings and by the time when the Add]. S. C. passed his order on 31‑5‑1961, the Memo dated the 7th of March 1960, bad already come into existence. In this connexion, we would make reference to Lach meshwar Prasad Shukul and others v. Keshwar Lal Chaudhuri and others. It was held in that case, that the hearing of an appeal being in continuation of the original proceedings, the Appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. It was further held that the Appellate Court was competent to take into account legis lative changes since the decision under appeal was given and its powers were not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given."

7. We have no quarrel with the law laid down in the above‑mentioned authorities. The close scrutiny of the cases referred to above shows that all that is decided in the said cases is that the appeal is a continuation of the suit and the whole case re‑opens at the appellate stage but, as contended by the learned counsel, it is nowhere laid down that by filing the appeal the vested right accrued to the opposite‑party by virtue of a decree becomes; sub judice. We agree that any legislative change even during the pendency of an appeal shall have to be taken into consideration. But here in this case; the change by virtue of the notification taking away the right of prior pure, chase was not retrospective in nature and cannot be said to have deprived a person of a vested right. Ordinarily a notification issued under statutory powers should be deemed to come into effect on the date when it is pub lished and not from any earlier date. It is well‑recognized rule of construction that retroactivity is not to be given to a statute so as to impair an existing right or obligation, unless the effect cannot be avoided without doing violance to the language of the enactment.

8. There is an authority for the view that the right to sue is a vested right. Reference may be made in this connection to Jackson v. Woolley ((1858) 27 L J Q H 448). The position of ‑a decree‑holder therefore in a pre‑emption suit is that his vested right, i. e. right to sue becomes incorporated in a decree and his position her appeal is that of one who is defending his decree and not enforcing a right to pre‑empt. The decree gave him the status of full owner immediately on payment of decretal money and unless fault be found with the decree itself affirmance of it could not be withheld because of the notification. How ever had the plaintiff's suit been dismissed the Government notification, issued while the appeal was pending and taking away the right of pre‑emption would have been fatal to the pre‑emptors. The law is now practically settled which, in our new admits of no exception that it is only essential for the pre‑emptor to retain his right of pre‑emption till the date of the decree of the first Court. The point, therefore, resolves itself into the question whether the plaintiff pre‑emptors had retained their right of pre‑emption till the end of the suit in the face of the impugned notification. The answer obviously is in affirmative because the notification was issued when the appeal of the vendee appellant was pending before the High Court and the pre emptor's right had been incorporated in a decree.

9. The point involved in the present case in past has received different treatments by different Superior Courts of the sub‑continent. Some High Courts were of the view that a pre‑emptor is necessarily required to retain superior qualification upto the passing of the final decree by the appellate Court but the view of the majority of the High Courts conversely was that when a decree is passed in favour of a pre‑emptor by the trial Court a noti fication issued thereafter taking away the right of pre‑emption does not affect the decree because after that a pre‑emptor is only defending a decree and not asserting the right.

10. Dealing with the point in Mst. Bibi Jan and others v. Miss R. A. Monny and another (PLD 1961SC69) it was held:‑‑ "that ordinarily a notification, issued under statutory powers, should be deemed to come into effect on the date when it is published and not from an anterior date. But whether it should have any retrospective or retroactive effect, would depend entirely on the terms of the noti fication itself and the statutory mandate behind it. It is only when the words of a statute are not plain that the maxim 'omnis nova con stitutio futuris formam imponere debet non praeteritis (which means that, except in special cases, the new law. ought to be construed so as to interfere as little as possible with vested rights) would be applied. The words of the Notification No. 4347‑L‑D dated 7‑11‑1951, are plain and fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre‑emption would cease to exist, in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held hereafter. The only exception that could be recognised to this proposition would be in favour of cases in which decrees had already been obtained by the pre‑emptors, prior to the notification. In the case of such an existing decree, it could not be said that the pre‑emptor was seeking to enforce his right to pre‑empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudi cation by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification, so as to non‑suit plaintiffs who may have filed suits for pre‑emption before the date of the notification, as well as debar all pre‑emptors from instituting suits to enforce their right of pre‑emption in the area in question subsequent to the date of the notification. The ' right of pre‑emption possessed by the pre emptor in the case was, therefore, lost on the date the impugned notification was issued and his suit was rightly dismissed by the lower Courts.'. It has been `further stated at page 75: "The reported cases in which a decree had been obtained by the pre emptor in the Court of first instance before a notification under section 8 (2) of the Punjab Pre‑emption Act, 1913, was issued, are easily distinguishable from those in which the right to pre‑empt had not yet been incorporated into a formal adjudication by a Court. In the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the Court, which would henceforth be regarded as the sources of right, for the decree -holder. Such a decree would, therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the right of pre‑emption in similar cases,"

11. All the Courts note are one on the point that notification issued after a decree has been passed by the trial Court in favour of a person does not deprive the pre‑ernptor of his vested right incorporated in the decree because the notification in question would affect only those suits in which the decree for pre‑emption may not be passed by the Court of first instance at the time of the enforcement of the notification. There is unanimity in the opinion in the High Courts of Lahore, Peshawar and Supreme Court of Pakistan that in cases where a decree for preemption had been passed by the Court of first instance thereby vesting the property in the pre‑emptor, such a notification does not affect adver sely the rights created under such decree. Mamfjannessa v. Tazaruddin and another (P L D 1963 Dacca 758) on which reliance was placed by the learned counsel during the arguments was also referred in the High Court. The High Court repelled the contention and, very rightly, made the observation:‑ "The learned counsel referred me to P L D 1963 Dacca 758 in which he claimed that it had been laid down that if a pre‑emptor cease to be a co‑sharer during the pendency of an appeal (the right of pre‑emption was based on co‑sharer ship), the pre‑emption proceedings must fall. However, a perusal of the judgment shows that the A pre‑emptor based his claim as a co‑sharer on account of purchase by at him of some land from another co‑sharer. Another co‑sharer had also brought a suit for pre‑emption against the pre‑emptor's purchase. 4 .:,.;:f This suit was decreed while the pre‑emptor's suit was still pending in the trial Court. Thus the pre‑emptor actually did not possess the qualification of a co‑sharer at the time when the trial Court passed a decree in his favour. As such there is no conflict at all between a this ruling and‑ the view taken by our High Court in the ruling cited above." In view of the above, we hold that the notification passed during the pendency of the appeal before the High Court did not affect the right that) had already vested in the respondent‑pre‑emptors by virtue of the pre‑emption, decree passed by the Court of first instance as in such a case it would be said that the pre‑emptor is defending his right under the decree and not asserting his right of prior purchase. For the view we have taken in the matter we see no force in the appeal which is hereby dismissed with costs. S, Q. Appeal dismissed.