HUMAYAN ARSHAD Versus GHULAM RASOOL

1. The brief facts giving rise to this revision petition are that petitioner filed a suit for possession through Pre‑emption on 16‑6‑1990 relating to the sale of land measuring 2 Kanals which took place on 30‑11‑1989. The learned Civil Judge dismissed the suit through judgment, dated 9‑3‑1994 on the ground of non‑fulfilment of Talabs. However, the learned Additional District Judge, Gujrat in appeal tiled by the petitioner against the dismissal of his suit held that suit of the plaintiff was bound to be dismissed being barred by time. The petitioner has preferred this civil revision questioning the validity of the judgment in suit as well as in appeal. The pivotal question for determination would be that what law would govern the suit for pre emption tiled during the period from,,31‑7‑1986 on which date the Pre emption Act, 1913 was declared repugnant to the Injunctions of Islam by the Shariat Appellate Bench of Supreme Court of Pakistan in a case titled Government of N.‑W.F.P. through Secretary Law Department v. Malik Said Kamal Shah reported in PLD 1986 SC 360 till the promulgation of Punjab Pre‑emption Ordinance, 1990 on 29‑3‑1990 and Punjab Pre‑emption Act, 1991. The order of the apex Court in Said Kamal Shah's case was to the following effect as per judgment of Muhammad Taqi Usmani, J.‑‑

2. The learned counsel for the petitioner contended that the Shariat Appellate Bench of Supreme Court having declared the Punjab Pre‑emption Act, 1913 repugnant to the Injunction of. Islam through the above referred judgment in Said Kamal Shah's case directed for enactment of consolidated law of Pre‑emption but no such law was enacted before the target date i.e.,31‑7‑1986. However, later Punjab Pre‑emption Ordinance, 1990 was promulgated on 28‑3‑1990 and then Punjab Pre‑emption Act, 1991 was promulgated as permanent law, thus in the interregnum period, the limitation for a suit for pre‑emption would be governed by the old law and limitation for such suit would be deemed to be one year as provided under the Punjab Pre‑emption Act, 1913. Consequently, a suit filed during the said period would not be defeated on the question of limitation‑on the basis of period of limitation provided under the Punjab Pre‑emption Act, 1991, and therefore, the petitioner was wrongly non‑suited on the question of limitation.

3. The learned counsel for the respondent on the contrary has contended that in consequence to the declaration of Punjab Pre‑emption Act, 1913 as repugnant to the Injunctions of Islam, except the pending suits the provisions of said Act being no more applicable and the period of limitation of one year as provided under the said Act would not be available for the purpose of filing a suit for pre‑emption notwithstanding the fact that the Punjab Pre‑emption Ordinance, 1990 was promulgated on 28‑3‑1990 which was subsequently made permanent law through Punjab Pre‑emption Act, 1991. The apex Court in Ahmad v. Abdul Aziz PLD 1989 SC 771 held as under:

2. "My learned brother has himself observed that a pre‑emptor to succeed must have a subsisting right at three material stages; first when the sale takes place; second when the suit is instituted and third when the suit is decreed. Since it has been held in Said Kamal's case that the question of limitation in Islam is not a procedural but a substantive right, the question will arise as to what will be the requisite period of limitation to enforce the right of co‑sharership or the right of contiguity after section 30 has ceased to have effect'? will resort be had to the Islamic Law on the subject for determining this matter because a decree in favour of the pre‑emptor can be granted only if his suit is within time. But since nothing can be engrafted into an existing lave as held by my learned brother, then the law which survives in its present truncated form, is not workable. Should the case be sent back for administering such a truncated law for enforcement of a claim based on the co‑sharership or contiguity, even in such circumstances? I do not think so."

3. The apex Court in Muhammad Shabbir Ahmad Khan v. Government of Punjab PLD 1994 SC 1 while considering the question whether the benefits available to a Pre‑emptor under the Punjab Pre‑emption Act, 1913 would be available during the interregnum period with reference to the section 35(2) of Punjab Act, 1991 observed that section 35 would protect two categories of suits; firstly the suits instituted after 31st of July, 1986 and secondly the suits which were pending on that date which is as under:‑‑

4. "It should be noted for a proper understanding of this saving clause that the decision of this Court in Said Kamal's case took effect on 31st of July; 1986 whereby the Punjab Pre‑emption Act, 1913 ceased to have effect. The Government of Punjab was supposed to enact a fresh law of Pre‑emption on the basis of Islamic Injunctions before 31st of July, 1986. But unfortunately the new law was not promulgated before 29th of March, 1990. In the intervening period no statute law was available with regard to pre‑emption. The purpose of section 35 is to protect all those suits which were instituted or were pending during this interregnum period subject to the condition that the right of pre‑emption is available for the plaintiffs under the law of pre‑emption which was promulgated on 29th of March, 1990. However, by virtue of subsection (2) such suits were exempted from the‑application of section 13 of the Act and were consequently given a concession regarding the requirement of Talabs: The period of limitation was extended for such suits to one year and the requirement of Talab‑i‑Mawathabat and requirement of sending a notice to the vendee was dispensed with."

5. Thus, the plaintiffs of those cases who filed their suits at the time when the Punjab Pre‑emption Act, 1913 was not in field would not be entitled to claim any concession' under the provision of said Act. It was observed that the requirement of Talabs was substantive conditions under Islamic Law to be fulfilled and further to exercise the right of pre‑emption, limitation of one year would not be available. The relevant portion of the judgment is reproduced herein:‑‑

6. "We need not repeat the provisions of Sunnah of the Holy Prophet (p.b.u.h.) on the basis of which it was held in Said Kamal's case that all the three Talabs are the substantive part of the Islamic Law of Pre‑emption, but once this principle is established, no concession in this respect is justified from the Shariah view point. The reasons given by the learned Federal Shariat Court in this respect are well- founded and the judgment given on their basis needs no interference by this Court.

7. It is, therefore, held that section 35(2) of the Act, 1991 is repugnant to the Injunctions of Islam in so far as it exempts the cases pending or instituted during the period from 1st of August, 1986 to 28th of March, 1990 from the requirements of Talab‑i‑Mawathabat, and extends the right of limitation for them up to one year. However, the provisions of sending a notice to the vendee, as contemplated in section 13 of the Act 1991, can be dispensed with in relation to these suits, because as mentioned earlier, sending of notice is not a substantive requirement in the Shariah to effect .the Talab‑i‑Ishhad. On the contrary, it is procedural provision enacted by the Legislature on the basis of expediency. Therefore, it is open for the legislature to dispense with this requirement altogether or with ' respect to certain cases.

(iii) Section. 35(2) in so far as it exempts the 'suits of pre‑emption instituted or pending between 1st day of August, 1986, and 28th March, 1990 from the requirements of Talab‑i‑Mawathabat and because they have extended the period of limitation for such suits to one year. The Appeal No. 12 of 1991 filed by the Government of Punjab with regard to these three sections is dismissed.."

8. In Aziz‑ul‑Haq v. Muhammad Asad 1995 MLD 1954 it was held by the learned Single Judge of this Court as under:‑‑

9. "The admitted position is that the appellant did not make Talab‑i -Ishhad under the main provisions through a notice in writing attested by two truthful witnesses sent under registered cover acknowledgement due. It is also admitted that it was not pleaded that owing to lack of post office facility Talab‑i‑Ishhad was made orally in the presence of two truthful witnesses. It is settled law that a fact which has not been pleaded cannot be allowed to be proved. The learned counsel for the respondents has rightly referred to the case of Muhammad Riaz, Khalilur Rehman, Al‑Athar Limited and 4 others, Muhammad Zafar Iqbal, Aisha. Bibi and 5 others, Rehmat Masih, Gulzar Ali and another and Mst. Jannat Bibi (supra). In this behalf reference can also be made to the judgment reported as Tasleemullah, Director, Saleem Sons Ltd. v. Mst. Khalida Khanum and others PLD 1994 Lah. 423.

10. This is not all. The plaintiff is claiming benefit of proviso to subsection (3), therefore, he has to clearly plead the facts entitling him to the benefits of the proviso or in other words he was to justify absence of notice as required under subsection (3). It is for the party claiming benefit of a proviso to the general law to clearly plead the circumstances entitling it to benefit of exception and only then it can be allowed to prove the same. In this behalf, reference can be made to Muhammadi Steamship Co. Ltd. v. The Commissioner Income -tax (Central) Karachi PLD 1966 SC 828, Messrs Rehmat Ullah & Sons v. The Commissioner of Sales Tax 1974 SCMR 127, Messrs Central Cotton Mills Ltd. and Lahore Textile & General Mills Ltd. (supra). The plaint was rightly, rejected in view of the judgments in the cases of Muhammad Altaf v. Muhammad Nawaz 1992 MLD 1207, Mst. Ayesha Bibi v. Muhammad Sajid and another 1995 SCMR 294 and Pervaiz Anjum Ghauri and another v. Abdul Rahim and 3 others 1995 SCMR 2999 referred to by the learned counsel for the respondents."

11. In Iqbal Hussain v. Ashiq Hussain 1994 SCMR 506 the learned Single Judge of this Court held as under:‑‑

12. "In terms of section 30, for a suit for pre‑emotion, limitation began to run from the date of attestation of mutation i.e. 30‑9‑1989. There was no ambiguity about it, in face of a clear language of the statute. Law of limitation was a law relating to procedure and a suit or proceeding was governed by the Limitation law in force at the time of its institution. On the date of filing of the suit, Punjab Ordinance (V of 1990) had come in force and was followed by successive Ordinance and the Act, keeping the provisions regarding limitation alive. The argument that commencement of limitation was linked with and depended upon 'notice' in the succeeding section did not appeal to me. In fact, the notice‑provision‑in the section was clearly relatable to and had nexus with demands of pre‑emotion contemplated by section 13, subsection (3) of the Pre‑emotion Ordinance/Act. Therefore, the bar of limitation being apparent on the face of the plaint itself, could not be overlooked and postponed for decision till the end of: trial of the pre‑emotion suit. Swiftness of required steps by a would be pre‑emptor for enforcement of his pre emptive rights was the true essence and object behind the pre emption. Unreasonable delay in performance of Talabs tentamounts to acquiescence and extinguishes the pre‑emotion. The law of limitation, therefore, was required to be construed strictly. In view of aforesaid, I would agree with the lower Courts, upheld their decision and dismiss the revision petition in limine."

13. In the light of the law laid down by the apex Court in Said Kamal Shah's case and the spbsequent judgments referred to above, there is no ambiguity to hold that the law of Limitation provided under Punjab Pre emption Act, 1913 would not be applicable to the suits which were filed after 31‑7‑1986 on which date the Punjab. Pre-emotion Act, 1913 ceased to have effect. The suit in the present case was filed on 16‑6‑1990 whereas Punjab Pre‑emotion Ordinance, 1990 was promulgated on 29‑3‑1990 which provided a period of limitation of four months for filing a suit for pre emption. The sale in the present case took place on 31‑11‑1989, and therefore, after promulgation of Ordinance, 1990 further delay uptil 16‑6‑1990 in filing the suit would not be permissible or in any case after 29‑3‑1990 the benefit of Punjab Pre‑emotion Act, 1913 would not be available. Thus, the suit of the appellant would neither be governed by the provisions of Punjab Pre‑emotion Act, 1913 nor the plaintiff would be benefit by virtue of the provisions of section 35(2) of Punjab Pre‑emotion Act, 1991. It has been held by the apex Court in Muhammad Shabbir Ahmad v. Government of Punjab PLD 1994 SC 1 that the Talabs being substantive part of the Islamic Law could take effect on the promulgation of the Punjab Pre‑emption Act, 1913 and thus, in the interregnum period in absence of a codified law on the subject the Islamic Law as such would be followed under which neither the' requirement of Talab can be exempted nor period of limitation of one year can be allowed. In nutshell, failure of fulfilment of Talabs would automatically take away the right of pre‑emption, therefore, the question of providing period of limitation for one year would not arise to exercise such right.

14. For the foregoing reasons; this revision petition having no force stands dismissed.

15. Q.M.H./M.A.K./H-36/L Appeal dismissed.