GHULAM DASTGIR vs BAGH ALI
These petitions for leave to appeal challenge Lahore High Court judgments that dismissed pre-emption suits based on the ruling in Said Kamal Shah v. Federation of Pakistan (PLD 1986 SC 360). The petitioners, who had instituted their suits prior to the announcement of the Said Kamal Shah judgment, argued that the declarations therein were inapplicable to their pending cases and that they were entitled to decrees after the cutoff date of 31-7-1986. The core legal question was whether pre-emption suits filed before the Said Kamal Shah decision could proceed to a decree after the specified cutoff date. The Supreme Court, relying on its precedent in Sardar Ali v. Muhammad Ali (PLD 1988 SC 287), held that while decrees passed before 31-7-1986 remained effective, no fresh decrees could be granted in pending suits after that date because the underlying laws ceased to have effect. Consequently, the Court affirmed the High Court's dismissal of the suits, establishing that pending pre-emption proceedings without a decree by the cutoff date could not culminate in a fresh decree.
- Can a fresh decree be passed in a pre-emption suit after 31-7-1986 if the suit was instituted before the decision in Said Kamal Shah's case?
- Do pre-emption decrees passed before 31-7-1986 remain effective despite the ruling in Said Kamal Shah's case?
ORDER
' SAAD SAOOD JAN, J.--These are two petitions for leave to appeal from the judgments dated 17-10- 1988 and 24-5-1988 of the Lahore High Court. These petitions raise a common question of law and for that reason, have been heard together.
2. Petitioner in C.P. No, 50 brought a suit for pre-emption, basing his superior right on the assertion that he was a co-sharer in the estate. On 21-4-1987, the trial Court dismissed the suit on the ground that after the decision of the Shariat Appellate Bench of this Court in Said Kamal Shah's case PLD 1986 SC 360, it was no longer maintainable. The petitioner filed an appeal before the Additional District Judge, Okara but it was dismissed on the ground of limitation. He then preferred a second appeal in the High Court. A learned Single Judge dismissed it on the authority of the decision of this Court in Sardar Ali v. Muhammad Ali PLD 1988 SC 287.
3. The petitioner in C.P. No, 713 too is a pre-emptor who based his claim to superior right on the assertion that he was a collateral of the vendor and a co-sharer in the estate. His suit was decreed by the trial Court on 26-9-1987 but in first appeal, again on the authority of the rule laid down in Sardar Ali's case, ibid, a Division Bench set aside the judgment and decree of the trial Court and dismissed the suit.
4. In support of these petitions it is contended that as the petitioners had instituted their suits before the announcement of the judgment in Said Kamal Shah's case, ibid, the declarations made therein were not applicable to them and as such the High Court was not right in holding that no decree could be granted to them after 31-7-1986, that is, the date specified by the Shariat Appellate Bench. This contention was also raised in Sardar Ali's case and was rejected with the observations: "In the light of the foregoing analysis and interpretation of the provisions of the Constitution itself, it is clear that pending cases in the pre-emption matters were to continue to their logical ends without a vacuum and the decrees passed in the meanwhile before 31-7-1986 would have effect accordingly. But in cases where only suits were filed or proceedings were pending without culmination into decrees in favour of the plaintiff before that date, no fresh decree could be passed subsequently; because those laws ceased to have effect on that date rendering such subsequent fresh decrees without contemporaneous legal support."
The judgments of the High Court in these two petitions are in accord with these observations and are therefore unexceptionable. The petitions are dismissed.