Mst. BIVI Versus GHULAM MURTAZA
SHEIKH HAKIM ALI, J.--- This Civil Appeal calls in question, the judgment dated 30-5-2001, rendered by a learned Single Judge in Chamber of the Lahore High Court, Lahore, in Civil Revision No.222-D of 1991 Mst. Bivi v. Ghulam Murtaza and others by which civil revision was dismissed.
2. The case has got chequered history of long drawn litigation between Mst. Bivi v. Ghulam Murtaza and others, with regard to a suit for possession on the basis of superior right of pre-emption, filed by Mst. Bivi, in the Court of learned Civil Judge, Bhalwal, District Sargodha on 30-6-1983 claiming herself to be collateral and legal heir of vendor in respect of the land, measuring 67 Kanals 10, Marlas, situated in Mouza, Lilliani, ,Tehsil Bhalwal, District Sargodha sold out through mutation No.6053 attested on 6-11-1973, for a consideration of Rs.35,000 against Ghulam Murtaza and others the present respondents, who are vendees of the aforesaid suit lands.
3. Relevant point which requires decision of this Court is, as to whether the decree admittedly passed on 31-7-1986 by learned Civil Judge, Bhalwal, District Sargodha in favour of appellants-pre-emptors, was saved from the clutches of the judgment reported as Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 and had fallen within the ambit of provision of section 34 of Punjab Pre-emption Act, 1991 (hereinafter referred to as the "Act of 1991") by which the judgments and decrees passed before the 1st day of August, 1986 were saved and repeal of the Punjab Pre-emption Act, 1913 (hereinafter to be called as "Act of 1913") had no repercussion upon those judgments and decrees for the purpose of all the ensuing proceedings, emanating from those decrees passed before the aforementioned target data?
4. It has been admitted by both the learned counsel of the parties, that according to the report and actuality of facts, the judgment and decree was passed by learned Civil Judge on 31-7-1986 in favour of Mst. Bivi, plaintiff-pre-emptor. Learned High Court has held that Said Kamal Shah PLD 1986 SC 360 had become effective from 31st July, 1986 and the Act of 1913 had become wholly unworkable from that date. According to the learned counsel for the appellant, learned Court has misinterpreted the crucial date of ineffectiveness of the provisions of the Act of 1913. Elaborating his arguments, learned counsel submits that, in fact, the Government of the Provinces were directed to enact pre-emption laws in accordance with the Injunctions of Islam uptill 31-7-1986, and in case of failure to enact the pre-emption law as such, the judgment was to take effect thereafter. As the Government of the Punjab Province had not enacted the law till 31-7-1986, therefore, the operative date of ineffectiveness of the Act of 1913, would commence with effect from 1-8-1986 and not from 31st July, 1986. This contention of the learned counsel for the appellant has not been forcefully controverted by the learned counsel for the respondents through his arguments.
5. Before the decision of the target date as to when the Act of 1913 had lost its functioning, we would like to reproduce the relevant part of the order of the Court recorded in the judgment of Said Kamal Shah's case PLD 1986 SC 360 at page 476 which reads as follows:---
" On merits, following the majority point of view, Appeals Nos.4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani, J. If possible a consolidated law of pre-emption be enacted accordingly till 31-7-1986 . There shall be no order as to costs." (underlining is ours)
6. From the above quoted para. and the word "till" noted in the order, it is transparent that a consolidated law of pre-emption was to be enacted by the concerned Governments till 31-7-1986. In other words, 31-7-1986 was the last date when a fresh law of pre-emption was to be enacted and promulgated. But we have seen that the Punjab Government was not able to frame Punjab Pre-emption Law till 29th March, 1990, when for the first Punjab Pre-emption Ordinance V of 1990 had come into existence in the Province of Punjab. Thereafter, the law of pre-emption was kept alive by enforcement of one after the other Ordinances, (the list of which is not relevant at this stage) till lastly, when the Punjab Pre-emption Act, 1991, was approved by the Punjab Provincial Assembly on 21st day of March, 1991, which had got assent from the Governor of Punjab on 31st March, 1991 but was published in the Gazette of Punjab on 6th of April, 1991. In this Act, a provision of section 34 was incorporated which had expressly given the cutout date for saving all judgments and decrees having been passed before 1st day of August; 1986, so as to be governed by the provisions of repealed law of Act of 1913. Section 34 of the Act of 1991 is replicated for ready reference which is as under:---
"34. Repeal of Act 1 of 1913---(1) The Punjab Pre-emption Act, 1913 (I of 1913) is hereby repealed.
(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof."
7. From subsection 2 of section 34 of the Act of 1991, the intention of the legislature is explicit, according to which judgments and decrees, passed before 1st August, 1986, were saved. In other words, judgments and decrees passed on 31st July, 1986 were saved and these judgments and decrees were to be governed by the provisions of the Act of 1913 for further proceeding. This position was also clarified by this Court in Suo Motu Shariat Review Petition No.1/R of 1989 by the Shariat Appellate bench vide judgment reported in PLD 1990 SC 865. Relevant last para.4 of order of the Court is of vital importance which is repeated as under:---
8. From the above noted judgments and the provision of the law, the words "till and " οΊο»οΊͺ " are of vital importance which connotes that date of 31-7-1986 was inclusive in the saving process for the judgments and decrees passed in favour of plaintiff-preemptor, and these were preserved from the effect of repeal and were directed to be governed by the provision of the Act of 1913. From 1-8-1986 (this date is inclusive for ineffectiveness), any judgment and decree passed under the old law of the Act of 1913 could not be considered to have been saved due to the provision of above mentioned section 34(2) of the Act of 1991.
9. Accordingly, the appeal is accepted and the case is remanded to the learned District Judge, Sargodha, for decision of appeal RFA No.354 of 1988 Ghulam Murtaza and others v. Mst. Bivi on merits, in accordance with the provisions of the Act of 1913. Learned .District Judge may hear the appeal himself or may entrust it to any other learned Additional District Judge. However, we expect that the learned appellate Court shall try its best to dispose of the aforementioned appeal within shortest possible time as the case has already consumed much period to reach to its final decision.
M.H./B-2/SC Case remanded.