GHULAM RASOOL and 2 others vs FAIZ BAKHSH
This appeal arises from a judgment of the Lahore High Court which dismissed a pre-emption suit filed by the appellants, Ghulam Rasool and others, against the respondent, Faiz Bakhsh. The core legal question was whether a pre-emption suit, in which an initial decree was passed prior to the Federal Shariat Court's declaration striking down certain provincial pre-emption laws on 31-7-1986, could proceed to a final decree after that date. The High Court had held that because the initial ex parte decree from 1982 was set aside by an appellate court in 1983, no decree existed before the cut-off date, thus invalidating the suit. The Supreme Court rejected this reasoning, relying on the precedent established in Sardar Ali's case (PLD 1988 SC 287). The Court held that the suit could validly proceed and be decreed by a competent court after 31-7-1986, provided the initial proceedings commenced before that date. Consequently, the Supreme Court set aside the High Court's judgment and restored the judgments of the lower courts in favor of the appellants.
- Can a pre-emption suit proceed to a final decree after 31-7-1986 if the initial decree was set aside by an appellate court before that date?
- Does the setting aside of an ex parte decree by an appellate court negate the existence of a suit for the purposes of the pre-emption law cut-off date?
' RUSTAM S. SIDHWA, J.---This is an appeal by Ghulam Rasool and others, appellants, against the decision of a learned Single Judge of the Lahore High Court, dated 11-7-1989 accepting the revision petition filed by Faiz Bakhsh, respondent, setting aside the impugned judgments of the Courts below and dismissing the suit of the appellants.
2. The short point for discussion in this appeal is whether a pre-emption suit decree by the trial Court before 30-7-1986 could ultimately be decreed by a competent Court after the said date when the Federal Shariat Court struck down certain provisions of the different provincial laws regarding pre-emption as being contrary to the Qur'an and the Sunnah. In Sardar Ali's case PLD 1988 SC 287 at 320 and 344 this Court answered the said question in the affirmative. In the instant case an ex parte decree was passed by the Court in favour of the appellants on 17-7-1982. In these circumstances, the suit could have proceeded after 31-7-1986 and decreed by a competent Court.
The view of learned Single Judge that because the ex parte decree dated 17-7-1982 was set aside by the appellate Court on 17-5-1983, no decree by the trial Court deciding the suit existed before 31-7-1986, cannot be accepted. In these circumstances, following the rule laid down in Sardar Ali's case (supra) we have no hesitation in holding that the view of the learned Single Judge is not legally correct and deserves to be rectified.
3. For the foregoing reasons, this appeal is accepted, the judgment of the learned Single Judge, dated 11-7-1989 is set aside and the judgments of the two Courts below dated 14-7-1988 and 18-4- 1989 are restored. There shall be no order as to costs.
Cited by 1 case
- FAQIR REHMAN vs SHAH NAWAZ And Others 2003 YLR 771