FALAK SHER Versus MUHAMMAD MUMTAZ

ORDER

This revision petition has arisen from a pre‑emption suit filed by the petitioner on 4‑1‑1989 claiming right of pre‑emption on the following grounds:‑

(a) Shafi Shari

(b) Shafi Khalit.

(c) Shafi Jar

The suit was contested. The same was dismissed by the learned trial Court inter alia on the ground that the petitioner failed to prove Talb‑i‑Muwathibat and Talb‑i‑Ishhad through judgment, dated 15‑6‑1991. The petitioner feeling aggrieved filed appeal which has also been dismissed by the learned Add]. District Judge, Vehari, through judgment dated 11‑1‑1992. It has also been remarked by the learned lower appellate Court that the petitioner failed to produce any evidence that he was exercising right of pre‑emption in case of `Zaroorat' or to avoid `Zarar'.

2. Learned counsel for the petitioner argued that the date on which the suit was filed no law of pre‑emption was in force, therefore, this case was covered by section 35 of the Punjab Pre‑emption Act, 1991 because the same was filed after 1‑8‑1986 and before' coming into force of the said Act. He maintained that in such a suit the pre‑emptor was only to prove that right of pre‑emption had been claimed as is available under this Act and nothing more, therefore, on the proof of the fact that the petitioner was Shat Sharik, Shafi Khalit and Shafi Jar he should have been granted decree. As on the proof of these qualifications he shall be deemed to have claimed right of pre‑emption as available under the Act and in such a suit he was not required to prove fulfilment of requirements of Talabs, Zaroorat and Zarar which a plaintiff will have to prove in a suit filed after coming into force of Punjab Pre‑emption Act, 1991.

3. Since reliance has been placed on section 35 of Punjab Pre‑emption Act, 1991, it would be beneficial to reproduce the said Section which is as under for facility of reference:‑

" Section 35(1) . Notwithstanding anything in any other law for the time being in force, all decrees, judgments or orders dismissing the suits of pre‑emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive) in which the right of pre‑emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act shall subject. to subsection (2), be decided afresh according to the provisions thereof.

(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre‑emptor establishes that he had made `Talb‑i‑Ishhad' in the presence of two truthful witnesses."

4. Under section 6 right of pre‑emption vests in a person who is Shari Sharik, Shaft Khalit and Shafi Jar but under subsection (2) notwithstanding the fulfilment of these qualifications the right of pre‑emption is made exerciseable only in case of Zaroorat or to avoid Zarar. Since the right of pre‑emption by a plaintiff on any of the grounds mentioned in section 6(1) of the Act, is exercisable only in case of Zaroorat or to avoid Zarar, therefore, it cannot be held that the right of pre‑emption is available to him in case he fails to prove Zaroorat and that the same was being exercised to avoid Zarar. Subsection (2) of section 35 provides that in such a suit notwithstanding anything contained in section 13 the plaintiff is required to prove Talb‑i‑Ishhad only and he has been relieved from the burden of proving Talb‑i‑Muwathibat. This is indicative of the fact that but for subsection (2) the plaintiff was required to comply with the provisions of the said section. If the intention of the legislature was to relieve the petitioner from the burden of proving that he was exercising right of pre -emption in case of Zaroorat or to avoid Zarar as envisaged by subsection (2) of section 6 a similar provision would have been enacted in section 35 of the Act. The two Courts below have correctly held that the petitioner was required to, establish through evidence that he was exercising the right of pre‑emption in case of Zaroorat or to avoid Zarar in the present suit.

5. Learned counsel for the petitioner argued that in the plaint a plea was raised that the right of pre‑emption was being exercised by the petitioner in case of Zaroorat and to avoid Zarar. It is firmly settled law that the pleadings are not the evidence whereas the pleas raised in the pleadings are to be proved by producing evidence. In this case admittedly no evidence was produced that the petitioner was exercising the right of pre‑emption in case of Zaroorat or to avoid Zarar, therefore, the suit was rightly dismissed on that score.

6. Learned counsel for the petitioner argued that the finding of the two Courts below that the petitioner was also required to prove Talb‑i‑Muwathibat suffers from illegality. The argument has force. Subsection (2) of section 35 of the Punjab Pre‑emption Act, has relieved the petitioner in such a suit to prove Talb‑i‑Muwathibat but nothing turns on this as the suit of the petitioner has been held to be liable to be dismissed due to absence of proof that right of pre -emption was being exercised in case of Zaroorat or to avoid Zarar.

7. Learned counsel for the petitioner argued that the Federal Shariat Court has declared the provision of subsection (2) of section 6 of Punjab Pre- emption Act, 1991 as repugnant to the Injunctions of Islam w.e.f. 31‑12‑1991 from which date it ceased to be the law. The suit was filed by the petitioner on 4‑1‑1989. The learned trial Court passed the judgment dismissing the petitioner's suit on 15‑6‑1991, therefore, on this date the said provision was in force as the law. It is well‑settled law that the plaintiff has to establish that he had a right of pre‑emption enforceable on the date of sale, the date of institution of the suit and also the date of passing the final judgment by the learned trial Court. On the date of passing the judgment subsection (2) of section 6 was in force as the law, therefore, the subsequent declaration by the Federal Shariat Court about subsection (2) of section 6 being repugnant to the injunctions of Islam w.e.f. 31‑12‑1991 does not help the petitioners.

3. The two Courts below have not committed any material irregularity and illegality in exercise of jurisdiction vested in them under the law. The l revision petition has no force which is hereby dismissed in limine.

A.A./F‑41/C Revision dismissed.