P L D 1989 Lahore 309 (PLP)

This regular second appeal has arisen out of a suit brought by the appellant, Subedar, against the respondents, Mian Inam Elahi and others, in respect of certain land sold by one Sardar Hanif. It was alleged by the appellant that he was brother of the vendor and also a co‑sharer of the land in dispute and had, therefore, a superior right of pre‑emption. His plea found favour with the Civil Judge who heard the suit. As a result, the suit was decreed by the learned Civil Judge/ Judgment and decree passed by the learned Civil Judge were challenged by the respondents by taking appeal before an Additional District Judge. View taken by the learned Additional District Judge was that although, in view of dictum in the case of Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 S C 360 (Shariat Appellate Bench), the appellant could claim superior right of pre‑emption for being co‑sharer of the property in question yet he was not entitled to have the disputed land as the "mode of Talabs as enunciated in Islamic jurisprudence" had not been followed by him. Accordingly, the appeal was accepted by the learned Additional District Judge, judgment and decree passed by the learned trial Court were set aside and the suit was dismissed. Hence this second appeal by the plaintiff.

2. While deciding appeals, the learned additional District judge, inter alia, relied on Sardar Ali and others v. Muhammad Ali and others PLD 1998 SC

287. In the case it was held that ruling of the learned Shariat Appellate Bench in the case of Government of N.W.F.P through Secretary, Law department, will apply to all cases except those in which decrees had been passed before 31st July, 1986.

3. The case of Sardar Ali and others was decided in May, 1988. Before that, decree in favour of the appellant was passed by the learned trial Court, that is on 23rd April, 1988. In view of this, it was contended by learned counsel for the appellant that since the appellant was granted decree before the case of Sardar Ali and others was decided by the Supreme Court, law laid down in the case of Sardar Ali and others did not apply to the case of the appellant. In other words, his plea was that the law enunciated in the said case would apply prospectively and not retrospectively.

4. Position of law declared by the superior Courts, which is commonly known as case‑law, is different from that of the law made by means of a statute, such as an Act passed by Parliament or a Provincial Assembly, or an Ordinance promulgated by the President or a Governor. A statute does not apply from a back date unless retrospective effect is given thereto by making express provision in A this regard. The case‑law, however, governs all matters regardless of the fact that any matter relates to the period preceding or following the date on which the case‑law is enunciated. This is so because while laying down case‑law the superior Courts do not make new law but simply interpret the law already holding the field. Thus, in the matter of its application, case‑law cannot be equated with a statute. Accordingly, I am unable to agree with learned counsel for the appellant that the law declared by the Supreme Court in the case of Sardar Ali and others will apply to cases decided after the date when that case was disposed of and not to the cases which had been decided earlier. In this view of the matter, the petitioner cannot escape application of dictum in the case of Sardar Ali and others.

5. No other point was canvassed by learned counsel for the appellant; and since the above plea raised by him has no merit, I cannot help upholding the impugned judgment and decree. This second appeal, therefore, fails. It is, accordingly, dismissed in limine H.B.T./S‑400/L Appeal dismissed.