KUNDAL KHAN Versus AGHA JAN

WALI MUHAMMAD KHAN, J. ‑‑Kundal Khan, petitioner herein, filed a suit for possession through pre‑emption of land measuring 47 kanals 12 marlas situated in Mauza Gundayali Payan, Tehsil and District Kohat, against Agha Jan and others, in the Court of Senior Civil Judge, Kohat, on 13‑7‑1981, on the grounds of co‑sharership, participation in immunities and appendages such as right of way and right to discharge water and ownership of contiguous property, under the provisions of section 12 of the N.‑W.F.P. Pre‑emption Act, 1950 (since repealed). The suit was contested by the vendee‑defendants and after framing necessary issues in the case and recording some of the evidence by the trial Court, the judgment of the Appellate Shariat Bench of the Supreme Court in Said Kamal Shah's case (PLD 1986 Supreme Court 360) was pronounced. The interpretation of the said judgment as to whether it operates prospectively or retrospectively so far as the requirement of `TALAB' was concerned came up for consideration before the august Supreme Court and their Lordships while delivering the judgment in Sardar Ali's case reported as (PLD 1988 Supreme Court 287) observed that the requirement of `TALAB' being sine qua non for the enforcement of the right of pre‑emption recognized by Mohammadan Law, its non‑compliance having the effect of extinguishments of the preemptive rights, all those cases in which the `TALAB' had not been made and in which no decree was passed upto 31‑7‑1986 are not to be proceeded with, and are to be dismissed. However, in compliance to the directions made in Said Kamal Shah's case, the Government of N.‑W.F.P. promulgated an Act known as the N.‑W.F.P. Pre?emption Act, 1987 (Act X of 1987) (hereinafter to be referred to as the New Pre?emption Act) which repealed the earlier N.‑W.F.P. Pre‑emption Act of 1950 (hereinafter to be referred to as the Old Pre‑emption Act). In the New Act substantial departure was made from the earlier provisions and the most important being section 13 providing for `TALAB' as ordained by the Islamic Law of Pre‑emption. This change in the existing law pursuaded the defendant/ respondent to submit an application to the trial Judge for the dismissal of the suit on account of the non‑observance of the requirement of `TALAB' which found favour with him and he, vide his order dated 15‑1‑1989 dismissed the suit on this ground alone, without discussing the other merits of the case. Appeal filed before the District Judge also failed and in consequence a revision petition was filed before this Court which came up for hearing before our brother Muhammad Azam Khan Judge, who vide his order dated 1‑7‑1989 dismissed the same as well. In the meantime the Supreme Court pronounced its judgment in the Review petition titled `Ahmad v. Abdul Aziz' reported as (PLD 1989 SC 771) (hereinafter to be referred as Ahmad's case) whereby the view expressed in Sardar Ali's case was reviewed and it was held that besides the matters declared repugnant to the Injunctions of Quran and Sunnah in Said Kamal Shah's case, nothing else could be imported or engrafted in the remaining provisions of the Pre‑emption laws. Hence the instant petition for review of the order passed by Mr. Muhammad Azam Khan, Judge.

2. ???????? No doubt Order XLVII, Rule 4 of the Code of Civil Procedure provides that where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the same. Unfortunately Mr. Muhammad Azam Khan, Judge, who had earlier disposed of the revision petition fell ill in the month of August, 1989 and is on leave since then and being abroad in connection with his treatment, there is no likelihood of his resuming duty in the near future and, therefore, the review petition was placed before one of us (Wall Muhammad Khan, J.) who admitted the same in motion and at the same time recommended to his Lordship, the Chief Justice for constituting a larger Bench for hearing the review petition, as complicated questions of public importance were involved and His Lordship was pleased to' constitute this Bench for decision of the aforesaid petition.

3. ???????? The points requiring determination in the instant Review Petition are:‑‑

(i) ???????? What is the effect of the order of review by the Supreme Court in Ahmad's case on the decisions already made by the trial, Appellate and the Revisional Courts on the basis of Sardar Ali's case;

(ii) ??????? Whether the suits filed before and after 31‑7‑1986 (the target date given in Said Kamal Shah's case) but before 28‑4‑1987 when the new Act came into force, are hit by the non‑observance of the requirements of `TALAB' or not;

(iii) ?????? Whether the Demand of Pre‑emption (TALAB) under section 13 of the New Act is substantive or procedural;

(iv) ?????? Whether the Act of 1987 is prospective or retroactive in its operation;

(v) ??????? What is the effect of section 35 of the New Pre‑emption Act, 1987 and

(vi) ?????? Whether the decrees and orders passed on the basis of the judgment of the Supreme Court, one of them famously known as Sardar Ali's case, can be reviewed by the very Courts under their powers of review in view of the latest judgment of the Supreme Court in Ahmad's case?

4. Only two provisions of law in vogue in this Province relating to ',pre?emption, were considered by the Shariat Appellate Bench of the Supreme Court in Said Kamal Shah's case, the one relating to exemption under section 5 of the Old N.‑W.F.P. Pre‑emption Act, and the other with regard to the tenant's first right of pre‑emption as contained in Paragraph 25 (d) of Martial Law Regulation No. 115. Both the provisions were declared as repugnant to the injunctions of the Holy Quran and Sunnah and the Government of N.‑W.F.P. was directed to give effect to it before 31‑7‑1986 through necessary legislation failing which it shall cease to have effect from the said date. The effect of the judgment as to whether it was to take effect retrospectively or not, was thoroughly considered in case Abdul Ghaffar Khan v. Saghir Ahmad Aslam etc. reported as PLD 1987 Lah. 358 and after hearing eminent lawyers as amicus curaie, their Lordships of the Lahore High Court, while entertaining the judgment as having the effect of impliedly repealing the existing laws, came to the conclusions that the pre‑emptor's right was continued to exist, be enforceable and will, in no way, be impaired during the pendency at any stage of litigation and that anything duly done or struck under the existing laws before the operation of the said judgment on 31‑7‑1986 or the previous operation of those laws are to remain intact and are not to be disturbed. These conclusions were set at naught by the Supreme Court in Sardar Ali's case (PLD 1988 SC 287) but through review of the said judgment in Ahmad's case, the dictum of the Lahore High Court automatically revived. The judgment of the august Supreme Court in Ahmad's case specifically recites in para. 21 thereof that the `TALAB', even if sine qua non for advancing successfully their claim based on Islamic Law of Pre‑emption cannot be imported and engrafted into the left over statutory provisions of Pre‑emption law not challenged, not examined in the Said Kamal Shah's case and allowed for the time being to remain intact. It was further observed in para. 21 of the said judgment that the pre‑emption suits have a feature which distinguishes them from all other suits where, a pre‑emptor, in order to succeed, must have a specific right at three material stages, i.e. the first when sale takes place; the second when the suit is instituted, and the third when the suit is decreed. lit this view of the matter, their Lordships reviewed their earlier judgments with the result that the insistence on the non‑observance of `TALAB' in the cases instituted prior to 31‑7‑1986 or even insisted thereafter but governed by the old pre‑emption law cannot be insisted upon and all such cases shall be proceeded with and decided according to the old law of pre‑emption albeit the provisions declared repugnant to the injunctions of Islam and Sunnah by the Shariat Appellate Bench in Said Kamal Shah's case, have to be considered as deleted from the concerned Statutes.

5. ???????? Respectfully following the latter view of the august Supreme Court in Ahmad's case, we have no option but to hold that the requirement of `TALAB' was not mandatory for the pre‑emption suits instituted prior to 28‑4‑1987 and, therefore, the dismissal of all such suits by the trial as well as by the Appellate Courts, on this count alone cannot be sustained.

6., For the proper appreciation of the controversy regarding the prospectivity or retrospectivity of the N.‑W.F.P. Pre‑emption Act; 1987 (Act X of 1987), it is profitable to reproduce hereunder relevant provisions of sections 5, 6, 13 and 35 of the said Act and also the provisions of Article 264 of the Constitution read with section 6 of the General Clauses Act, 1981, which are as under::‑‑

Section 5. Right of Pre‑emption:

(1) ??????? The right of pre‑emption shall arise in case of sale.

(2) ??????? Nothing contained in subsection (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale.

Section 6. Persons in whom the right of pre‑emption vests.

The right of pre‑emption shall vest:‑‑

(a) ??????? firstly in shaft‑sharik;

(b) ??????? secondly in shaft‑khalit; and

(c) ??????? thirdly in shaft‑jar.

Section 13. Demand of Pre‑emption.

(1) ??????? The right of pre‑emption of a person shall be extinguished unless such person makes demands of pre‑emption in the following order, namely:‑‑

(a) ??????? talb‑i‑muwathibat;

(b) ??????? talb‑i‑ishhad; and

(c) ?????? talb‑e‑khusumat. ??????????

Section 35. Repeal.

(1) ??????? The North‑West Frontier Province Pre‑emption Act, 1950 (N.‑W.F.P, Act XIV of 1950) is hereby repealed.

(2) ??????? In the cases and appeals, filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts ,have .become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.

(3) ??????? All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and Suits of the pre‑emptor shall stand dismissed, except those in which right of pre‑emption is claimed under the provisions of this Act.

Article 264 of the Constitution:

Effect of repeal of Laws.‑‑

Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution:‑‑

(a) ??????? revive anything not in force or existing at the time at which the repeal takes effect;

(b) ??????? affect the previous operation of the law or anything duly done or suffered under the law;

(c) ??????? affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;

(d) ??????? affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or

(e) ??????? affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed.

Section 6 of the General Clauses Act.;

Effect of repeal.‑‑Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:‑‑

(a) ??????? revive anything not in force or existing at the time at which the repeal takes effect; or

(b) ??????? affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) ??????? affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) ??????? affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) ??????? affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty; forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

The instant legal position also came up for consideration before the Honourable Judges of the Supreme Court and those of the High Courts and several authoritative judgments are available on the point for the guidance of the Courts. We, therefore, deem it necessary to refer to some of them which are applicable to the facts of the case in hand. The dictum of the Supreme Court, pertaining to the interpretation of statutes, in case titled as Province of West Pakistan v. Mehboob Ali and others, reported as PLD 1976 S C 483 is to the following effect:‑

"The basic principles governing the interpretation or construction of statutes are well settled. But these have seldom been regarded as inflexible, except perhaps where a statute is plain, certain and free from any ambiguity so that a bare reading of it would suffice. In essence, in such case, interpretation is unnecessary. Barring such plain cases statutes would be construed liberally or strictly, according to their subject‑matter, the object or purpose intended to be achieved, or whether it is any way in derogation of any common law or inherent right. For instance, it is well settled that penal or fiscal statutes or statutes construed and any ambiguity or impression is to be resolved in favour of the subject. On the other hand, it is equally well settled that remedial statutes are to be liberally construed so as to advance the remedy and suppress the mischief. So also empowering statutes are generally liberally construed so as to effectuate and not to stultify the power conferred. Modern cases provide many instances of the Judges' reluctance to stand upon the letter of the law strictly in interpretation of a statute failing under the second category. It is true that even in such cases, what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. In such cases, rule of cassus omissus is generally applied. But when faced with a choice between a wide meaning, which carries out what appears to be object of the Legislature more fully and a narrow meaning which carries it out less fully or not at all, the choice of the Courts is often the former. Beneficial construction is a tendency, rather than a rule."

7.In another case reported as (PLD 1961 S C 403), it was observed: "that while interpreting a statute, the language whereof admitting of two constructions, the one leading to absurdity to be avoided and the construction in accord with reason and justice to be adopted:"

The same august Supreme Court in another case, reported as (PLD 1961 Supreme Court 119), went to the extent that while interpreting statutes, the Court may modify language of statute to give effect to manifest and undoubted intention of Legislature. The latter dictum was followed in a Division Bench of Peshawar High Court, reported as (PLD 1965 (W.P.) Pesh. 65) as well. In the case reported as (PLD 1971 SC 252), their Lordships, keeping in view section 6 of the General Clauses Act, 1981, opined that if law is altered during the pendency of an action, the rights of the parties have to be decided according to the law that existed when action began and not that existing at the date of judgment or order.

8. While interpreting statutes regarding its retrospectivity or otherwise, the material consideration therefore, is whether the new statute encroaches upon the vested rights of the citizens or not. In other words, whether the same deals with substantive law or procedural law. It is by now well settled that statutes dealing with substantive law are prospective and those dealing with. procedural law are retrospective. Even in certain cases when a procedural law affects the vested rights, they operate prospectively and not retrospectively, as held by a Full Bench of this Court in the case of `Haji Noor Muhammad Khan v. Haji Muhammad Ali Khan and others reported as (PLD 1980 Pesh. 180), wherein it was held that right of appeal is a substantive right and cannot be taken away except by express provision or necessary intendment and the applicants having a right of second appeal at the time of filing of ejectment application before the Rent Controller under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, were held entitled to the said remedy after the amendment of the Ordinance ibid, vide the amending Ordinance IX of 1979. To the same effect is the dictum of the Supreme Court, reported as (PLD 1956 Supreme Court 256), wherein it was observed that:‑‑

"Where a statute affects a substantive right, in the absence of express words or necessary intendment, it is to be construed prospectively and not retrospectively. The right of appeal is a substantive right and it can only be conferred or taken away prospectively by express words or necessary implication."

9. ???????? In PLD 1970 Supreme Court 415, it was expressly laid down that the rights of the parties to a suit must be adjudicated on the basis of law prevailing at the time of its institution.

10. On the touchstone of the legal proposition enunciated in the above?quoted rulings, it is to be determined whether the Demand of Pre‑emption (TALAB) under section 13 of the New Act comes within the purview of a substantive law or is merely a procedural matter.

This has been .set at rest by his Lordship Mr. Justice Muhammad Taqi Usmani in the very judgment of Said Kamal Shah's case reported as (PLD 1986 Supreme Court 360) (Para 102) in the following words:‑‑

11. The principles enshrined in the judgment of Said Kamal Shah's case, in view of the provisions of Article 203‑D of the Constitution, have the force of law and are binding on all the Courts. Consequently, we feel no hesitation in holding that the provisions of section 13 of the New Pre‑emption Act being substantive law, have no retroactive application and, in consequence, all the suits of pre?emption pending at the time of the promulgation of this Act on 28‑4‑1987 are not hit by non‑compliance with the said provision of the New Act and shall be proceeded with and decisions given according to the provisions of the Old Pre?emption law and orders of dismissal of any pre‑emption suit by the trial/Appellate Court on the ground of non‑observance of the requirement of `TALAB' under section 13 of the New Act are illegal and have to be set aside. According to subsection (3) of section 1 of the New Act, it came into force at once, and vide subsection (1) of section. 35, the Old Act stood repealed. No definite provision was incorporated in the New Act for its retrospective operation and as such under Article 264 of the Constitution read with section 6 of the General Clauses Act, 1981, the New Act has to operate prospectively.

12. Nevertheless, subsection (2) and subsection (3) of section 35 of the New Act has created some confusion in this respect which has to be resolved, keeping in view the dictums of the Supreme Court and the High Courts discussed above, subsection (2) ibid provides that in the cases and appeals filed under the Old Act y in which judgments and decrees have become final, further proceedings, if any, relating to such cases and appeals shall notwithstanding the repeal of such law, be governed and continued in accordance with the provision thereof. The words "cases", "appeals" and "final" are significant. Final decision, as defined in Black's Law Dictionary, means:

"One which leaves nothing open to further dispute and which sets at rest cause of action between parties. Judgment or decree which terminates action in Court which renders it. One which settles rights of parties respecting the subject‑matter of the suit and which concludes them until it is reversed or set aside. The filing of signed findings and conclusions F and order for judgment."

Final judgment, according to the said Dictionary, means:

"One which finally disposes of rights of parties, either upon entire controversy or upon some definite and separate branch thereof. Judgment is considered `final' only if it determines the rights of the parties and disposes of all of the issues by the Court will be necessary in order to settle and determine the entire controversy."

Decree is defined in subsection (2) of section 2 of the Civil Procedure Code as follows:‑‑

"Decree" means the formal expression of an adjudication, which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final."

Rules 6 to 19 of Order 20 of the Civil Procedure Code deal with the contents of the decree passed by the original Court and rule 14 thereof governs the decrees in pre‑emption cases. Order 41, Rule 35 C.P.C. provides for contents of decrees in appeals. It is thus obvious that the decree of the trial Court attains finality the moment it is drawn and its finality remains intact so long as it is not set aside by the higher forums in appeal or revision. However, if the same is set aside in appeal, then the finality is attached to the decree passed and drawn up as stated above by the Appellate Court. Consequently both the decrees passed by the trial ; as well as the Appellate Court can safely be construed as final, in the former case i when no appeal is filed or the appeal filed against it is dismissed and in the latter i case when the same is set at naught by the Appellate Court resulting in the merger of the trial Court decree in that of the Appellate Court. Accordingly, the provisions of subsection (2) of section 35 of the Act ibid can be interpreted to G mean that if at the time of the promulgation of the New Act, a decree in a pre?emption suit had already been passed and the appeal against it is pending which is a further proceeding relating to the. cases in which the decree was passed, the operation of Old Act shall continue and govern the Appellate Court's proceedings. On the same analogy, if a decree by the Appellate Court has been passed at the time of the coming into force of the New Act and the same is under attack before the revisional Court or the High Court in its writ jurisdiction, such proceedings shall also be governed by the provisions of the Old Pre‑emption law. We are unable to subscribe to the view of the learned counsel for the respondents that the decree of the highest forum can only be considered as final and that the decrees passed by the trial Court or Appellate Court cannot be given that status. If the provisions of subsection (2) of section 35 of the Act ibid are likewise interpreted then the words "further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof become redundant and superfluous, inasmuch as, after the decision by the highest forum nothing remains to be done according to the Pre‑emption law, except the‑ attestation of mutations and the execution proceedings for which distinct procedure is available in different Statutes, viz. Land Revenue Act and Civil Procedure Code.

13. In subsection (3) of section 35 of the New Pre‑emption Act, it is provided that all other cases and appeals not covered under subsection (2) and instituted under the Old Law pending before a Court shall lapse and suits of pre‑emptors shall stand dismissed, except those in which right of pre‑emotion is claimed under the provisions of the New Act. Again the words "Cases" and "Appeals" have been inserted in this subsection and they have been held as abated except those in which the right of pre‑emotion is claimed on the grounds mentioned in section 6 of the New Pre‑emotion Act. The word "Abate", according to the said Black's '. Law Dictionary, means: "to throw down, to beat down, destroy, quash. To do away with or nullify or lessen or diminish. To bring entirely down or demolish, to put an end to, to do away with, to nullify, to make or void."

It would thus imply that the cases and appeals in which the rights of pre?emption were claimed on the grounds enumerated in section 6 of the New Act shall continue and were saved from abatement. The right of pre‑emotion is a right of prior purchase or a right to acquire, but purchase, an immovable property in preference to other persons by reasons of such right and is apparently a substantive vested right. It cannot, by any stretch of imagination be termed as a contingent right, as is alleged by the learned counsel for the respondents, moreso in cases of already instituted suits because under the Old as well as the New Pre-emption Act, any improvement made in the status of the vendee‑defendant after the institution of the suit for pre‑emotion cannot affect the right of the plaintiff/preemptor. Consequently, the right of pre‑emotion of the plaintiff, after the institution of the suit, being a substantive vested right could not be legally taken away by the Legislature while enacting the New Act unless the Legislature had specifically made the New Act operate retroactively. In the absence of any such provision, the New Pre‑emotion Act shall be deemed to operate prospectively.

14. As regards review of the judgments, decrees and orders, a reference to section 114 of the Civil Procedure Code which has been made applicable to the High Courts under section 117 of the Code, makes it clear that any person considering himself aggrieved from a decree or order from which an appeal is allowed, but no appeal has been preferred or where no such appeal is allowed by the Court or by a decision on a reference from a Court of Small Causes may apply for a review of judgment to the Court which passed the decree or made the order and the Court may make such order thereon as it thinks fit. The grounds on which a review can be sought are enumerated under Order 47 rule 1 of the Civil Procedure Code which are as follows:‑‑

(i) ???????? discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made or_

(ii) ??????? on account of some mistake or error apparent on the face of the record, or

(iii) ?????? for any other sufficient reason.

Sub‑rule (2) of Rule 4 of the said Order confers unfettered powers on the Court to grant the review, of course, after previous notice to the opposite side and giving them a chance of hearing.

15. It was agitated by the learned counsel for the respondents that mere change in view of the higher Court does not entitle the subordinate Courts to review their judgments and decrees passed by them on the strength of the earlier view of the superior Courts. There is no cavil with the said proposition but here the case is different. The Supreme Court in Sardar Ali's case reported as PLD 1988 Supreme Court 287 and some other cases, positively held that all those cases in which the requirement of `TALAB' had not been fulfilled and in which no decree has been passed prior to 31‑7‑1986, no decree could be passed after the said target date fixed in the Said Kamal Shah's case by the appellate Shariat Bench of the Supreme Court reported as (PLD 1986 Supreme Court 360). In view of this clear unequivocal command of the Supreme Court, the lower Courts had no option but to act according to the said directions and dismiss the suits hit by the above dictum. A review petition was filed against the very judgment mentioned above and a much larger Bench of the Supreme Court held otherwise and by exercising their powers of Review, set aside the same and restored the judgment and decree of the High Court concerned. Needless to emphasise that when a judgment or view is reviewed, its existence vanishes from its inception. Consequently we have no hesitation in holding that the judgments and decrees passed on the strength thereof by the subordinate Courts need setting aside through Review, Appeal or Revision. As stated earlier, there is no restriction on the powers of the Courts to grant a review of the judgments and decrees passed by them but even if it is assumed that their jurisdiction is restricted to the grounds mentioned in Order 47 Rule 1 of the Civil Procedure Code, even then the said provision is exhaustive enough to cover the instant plea of the petitioner.

16. The upshot of the above discussion is tat we accept this Review Petition, set aside the impugned order under rev. w and by setting aside the judgments and decrees of the trial Court and the appellate Court, remand the case back to the trial Judge for proceeding with the same from the stage at which it was prior to the passing of his impugned judgment and decree and to decide it afresh on merits according to law.

M.B.A./957/P ????????????????????????????????????????????????????????????????????????????????????????????????? Review accepted.