Mst. NAWAZ FATIMA vs MUHAMMAD SARWAR And Another
This petition for special leave to appeal arose from a suit for pre-emption dismissed by the trial court, District Judge, and the High Court. The core legal question was whether a pre-emptor who lacked a right of pre-emption at the time of the sale and at the time of the suit's institution due to an applicable notification prohibiting pre-emption claims could benefit from the subsequent withdrawal of that notification during the pendency of a second appeal. The Supreme Court upheld the High Court's decision and held that a pre-emptor must possess a subsisting right of pre-emption at three crucial stages: the time of the sale, the time of the suit's institution, and the time of the decree. The Court affirmed that where a pre-emptor lacked the right of pre-emption at the time of sale and suit, any subsequent revival or creation of such right during appellate proceedings does not confer an advantage or validate the claim. The petition was dismissed in limine.
- Must a pre-emptor possess a valid right of pre-emption at both the time of sale and the time of filing the suit?
- Does the subsequent withdrawal of a prohibiting notification during appellate proceedings validate a pre-emption suit that was invalid when filed?
- Section 8(2), Pre-emption Act
ORDER
1. ABDUL KADIR SHAIKH, J.--The petitioner's suit for pre-emption was dismissed by the trial judge on 11-3-1963 on the ground that the suit land was situated in colony area and was not subject to pre- emption. Petitioner's appeal was dismissed by the District Judge, Bahawalpur on 18-4-1964, and her second appeal was also dismissed by Lahore High Court for the same reason on 20-3-1975 and she now seeks special leave to appeal.
2. Mr. Shaikh Masud Akhtar, learned Advocate-on-Record for the petitioner submits that the notification, dated 12-6-1944 which placed prohibition on the claims of pre-emption was withdrawn by notification, dated 12-2-1974 issued by the Board of Revenue, Punjab, and therefore the petitioner was entitled to a decree in her favour at the stage of second appeal in the High Court since by then the bar to the claim in suit had been removed.
3. This argument has rightly been rejected by the High Court for the reason that "pre-emptor did not have any right of pre-emption in the property on account of notification No. 74, dated 12-6-1944 issued under section 8(2) of the Pre-emption Act. It is a cardinal principle that the pre-emptor must have a right of pre-emption at the time of the sales and at the time of the suit but the appellant lacks such right both at the time of the sale and at the time of the suit. In such circumstances if a right has revived to him after the institution of the suit, it would not give him any advantage." , The view that has prevailed in the High Court is well-settled and there is, therefore, no merit in the argument advanced by the learned counsel.
4. This petition is dismissed in limine.
Cited by 1 case
- Majeedan Bibi vs Muhammad Amin 2012 C.L.R. 1275