MUHAMMAD SHARIF vs MUHAMMAD SHARIF
This matter arises from a petition for leave to appeal filed by a plaintiff in a pre-emption suit against the disposal of the respondent's First Appeal by the High Court. The High Court had held that the plaintiff's pre-emption suit stood dismissed as no decree had been passed in his favour before the cutoff date, following the rule laid down in Sardar Ali v. Muhammad Ali (PLD 1988 SC 287). The core legal question concerns whether the petitioner's suit, based on co-sharership and relationship, could survive or be continued in light of subsequent jurisprudence, particularly Ahmad v. Abdul Aziz (PLD 1989 SC 771), which allowed pre-emptors basing their suits on co-sharership to continue their proceedings. The Supreme Court granted leave to appeal, holding that the contentions raised regarding the impact of subsequent case law on pre-emption suits based on co-sharership required detailed examination. The key principle laid down is that pre-emption suits involving co-sharership grounds warrant further examination when subsequent authoritative judicial pronouncements affect the applicability of earlier abatement or dismissal rules.
- Whether a pre-emption suit based on co-sharership can continue after the rule laid down in Sardar Ali v. Muhammad Ali?
- Does a remand order passed by an appellate court lose efficacy if no decree was passed in favour of the pre-emptor before the critical date?
- Whether pre-emptors who base their suits on co-sharership are entitled to continue their suits and appeals in view of the judgment in Ahmad v. Abdul Aziz?
ORDER
1. MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought by a plaintiff in a suit for pre- emption; against the disposal by the High Court, of respondent's First Appeal from an order passed by the District Court on the basis of judgment of this Court in the case of Sardar Ali and others v.
2. Muhammad Ali and others PLD 1988 Supreme Court 287; with the effect that the plaintiff's suit stood dismissed, as no decree had been passed in his favour before 31st July, 1986.
2. The petitioner had sued for pre-emption on the ground of relationship as well as co-sharership
(sic) and deficiency in the court-fee. On petitioner's appeal he was allowed to make up the deficiency in the court-fee and the case was remanded to the learned trial Court for fresh decision.
3. This remand order was ' challenged by the respondent before the High Court in First Appeal. It was disposed of with the following order:- "This first appeal against an order of remand passed by a learned Additional District Judge on 17- 6-1984, to remit the pre-emption suit of the respondent to the trial Court, has become infructuous on account of the remand order itself having lost efficacy in view of the law laid down in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287.
4. Since the suit was based on the ground of relationship with the vendor and ownership of the estate and had not been decreed at any stage before 31-7-1987, therefore, no decree in it can be passed now. Hence, the proceedings to be taken on remand will be an exercise in mere futility. The trial Court is hereby required to disregard the order of remand.
5. "This appeal is disposed of accordingly."
6. Learned counsel in seeking leave to appeal has contended that no doubt at the time the F.A.O. Was decided, the hctitioncr could not have gained any advantage on account of the remand order because by then no decree had been passed in his favour. However, subsequently on account of judgment of this Court in the case of Ahmad v. Abdul Aziz PLD 1989 Supreme Court 771 those pre-- emptors who had also based their suits on co-sharership, would be able to continue their suits and/or appeals. This and other questions raised in this petition require examination. Leave to appeal, accordingly, is granted.
7. Security Rs.2,500.
8. The appeal shall be prepared on present record with direction to the parties to file all those documents which shall be necessary for disposal thereof.