ASMATULLAH Versus BAHADUR KHAN

ORDER

A sale of agricultural land situate in village Sardar Garhi, District Peshawar effected by mutation No. 688 attested on 5‑4‑1986 in favour of Asmatullah Khan etc. herein the petitioners, was pre empted by Bahadeur Khan, respondent herein on grounds of co‑sharership, participation in immunities and appendages and contiguity by a suit instituted on 1‑4‑1987. The vendees‑petitioners had applied to the trial Court for dismissal of the suit under section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 since the pre‑emptor has not made demands of pre‑emption in the order of Talbi Muwathibat, Talbi Ishhad and Talbi Khusumat and resultantly his right of pre‑emption stood extinguished.

The trial Court dismissed the pre‑emption suit under a brief order reproduced below.

"Perusal of the file shows that the plaintiff; has not complied with section 13 of the N .‑W. F . P . Pre‑emption Act, 1987. Therefore, the suit of the plaintiff, stands dismissed with no order as to costs."

The above order was impugned in appeal before the Additional District Judge, who accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case for adjudication on merits under observations that the N.‑W.F.P. Pre‑emption Act, 1987 was enforced on 28‑4‑1987, while the pre‑emption suit was instituted on 30‑3‑1987 ‑and that the new Pre‑emption Act could not be given effect retrospectively and that rather section 35(3) ibid was to saver those pending cases in which the right of pre‑emption was also claimable and available under the new pre‑emption Act the instant revision petition has been filed by the vendees as against the aforesaid judgment and decree of the Appellate Court.

2. Learned counsel for the petitioners was posed a simple query that when at the time of the institution of the pre‑emption suit the new Pre‑emption Act was not in existence, how could the pre‑emptor be expected and called upon to make demands of pre‑emption in the order of "Talbi Muwathibat", "Talbi Ishhad" and "Talbi Khusumat" as envisaged under section 13 of the new Pre‑emption Act. "Talbi Muwathibat" is to be made immediately by a pre‑emptor in a sitting or meeting in which he has come to know of the sale and there and then declaring his intention to exercise the right of pre‑emption. In case of "Talbi Ishhad" the pre‑emptor is required to send a notice in writing attested by two truthful witnesses under registered cover acknowledgment due to the vendee confirming his intention to exercise the right of pre‑emption soon after the "Talbi Muwathibat" "but not later than two weeks. After "Talbi Muwathibat" and "Talbi Ishhad" the pre‑emptor is required to make "Talbi Khusumat" by filing a suit in the Court of competent jurisdiction to enforce his right of pre‑emption. Herein the last demand of pre‑emption i.e. "Talbi Khusumat" has since been fulfilled by the institution of a pre‑emption` suit before the enforcement of the new Pre‑emption Act and "Talbil' Muwathibat" and "Talbi Ishhad" the other prior requisites cannot be performed through a reverse process. No person can be called upon and obliged to fulfil the requirements of a law, herein section 13 of the Pre‑emption Act, being non‑existent at the time. Section 13 of the new Pre‑emptor Act shall, as such, have no application to cases of pre‑emption suits instituted prior to the enforcement of the new Pre‑emption Act. Section 35(3) of the new Pre‑emption Act also saves pending cases in which right of pre‑emption has been claimed as claimable and available under the new Pre‑emption Act. Since in the suit in hand the pre‑emption has claimed his right of pre‑emption on the basis of co‑sharership, participation in immunities and appendages and contiguity being duly recognized as right of Pre‑emption under section 6 of the new Pre‑emption Act, hence the present suit shall not lapse and be duly maintainable to be decided on its own merits.

3. In view of the above, this Court finds no merit in the revision petition and accordingly orders its dismissal in limine C.M. filed along is also dismissed having been rendered infructuous..

A. A./599/P Revision dismissed.