AZAD Versus KARAM KHAN
This civil appeal arose from a pre-emption suit regarding land measuring 100 Kanals 16 Marlas located in Tehsil Fateh Jang, District Attock. The respondent brought the suit for possession claiming a superior right of pre-emption as an owner in the estate and co-sharer. The trial court found the respondent to be an owner in the estate but dismissed the suit for failure to pay the requisite court-fee within the limitation period. The appellate court affirmed this decision. However, on revision, the High Court allowed the suit, holding that the late deposit of court-fee was not fatal. The petitioner challenged this decree before the Supreme Court on the ground that the right of pre-emption based on being an owner in the estate was no longer available following the Islamic principles laid down in Said Kamal Shah (PLD 1986 SC 360) and subsequent decisions. The Supreme Court allowed the appeal and set aside the High Court's decree, holding that the suit could not have been decreed on the basis of being an owner in the estate, thereby dismissing the pre-emption suit.
- Whether a pre-emption suit based on being an owner in the estate can be decreed following the Supreme Court's declaration of law in Said Kamal Shah's case?
- Whether the High Court erred in decreeing a pre-emption suit where the right claimed as an owner in the estate was no longer legally available?
ORDER
1. MUHAMMAD HALEEM, C.J.‑‑ The respondent herein pre‑empted the sale of land measuring 100 Kanals 16 Marlas situate in village Parri, Tehsil Fateh Jang, District Attock, through a suit for possession claiming to possess superior right as a co‑sharer as well as an owner in the estate.
2. The trial Court held him to be an owner in estate and not a co‑sharer in the Khata on 11th of June, 1983, but dismissed the suit as it found that he had failed to pay the court‑fee within the period of limitation and allowed the suit to become time‑barred The appeal failed as it was dismissed on 24th September, 1984.
3. The respondent thereupon preferred a revision in the High Court and the suit was decreed as the deposit of the court‑fee after the period of limitation had expired was not held to be fatal.
4. Before us it was urged that the right to pre‑empt on the basis of being an owner in the estate was not available in view of the decision in the case Government of N.‑W.F.P. v. Said Kamal Shah, P L D 1986 S C 360 and also that the suit could not have been decreed on 5th December, 1987, in view of the judgment of this Court in Civil Appeal No.208 of 1980 ‑ PLD 1988 SC 287.
5. On hearing the learned counsel for the petitioner notice was issued to the respondent who did not appear today to contest the legal objection raised.
6. In this view of the matter, as the High Court erred in decreeing the suit which it could not do so, we would convert this petition into an appeal and allow it with the result the suit shall stand dismissed but there will be no order as to costs.
7. M.B.A./A‑246/E Appeal allowed.