NAZIR BEGUM and 5 others vs FAZAL DAD and 2 others
This matter concerns a petition for leave to appeal against the dismissal of a pre-emption suit. The respondent purchased agricultural land in 1968, and the petitioners' predecessor-in-interest filed a pre-emption suit in 1969 based on being a collateral and co-sharer. Although the suit was initially decreed ex parte in 1969, that decree was subsequently set aside. In 1988, the trial court dismissed the suit, citing the Supreme Court's rulings in Government of N.-W.F.P. v. Said Kamal Shah and Sardar Ali v. Muhammad Ali, which established that no pre-emption decree could be passed after 31-7-1986. The petitioners' subsequent appeal and revision petition were dismissed by the lower courts. Before the Supreme Court, the petitioners argued that the initial ex parte decree removed the bar against passing a decree after the cut-off date, relying on later Supreme Court precedents. The Court found that the contention regarding the effect of the prior ex parte decree on the statutory cut-off date required further examination. Consequently, the Court granted leave to appeal to resolve whether the earlier decree created a vested right or exception to the established cut-off date.
- Does an initial ex parte decree in a pre-emption suit exempt the suit from the cut-off date for passing decrees established in Government of N.-W.F.P. v. Said Kamal Shah?
- Can a pre-emption decree be passed after 31-7-1986 if the suit was originally decreed ex parte before that date?
ORDER
' SAAD SAOOD JAN, J.---By a registered deed dated 29-4-1968 respondent No,1 purchased 61 Kanals and 18 Marlas of agricultural land situate in Chak Aggo of Tehsil Gujranwala for a sum of Rs,23,250. On 26-4-1969 Khan Muhammad Khan, predecessor-in-interest of the petitioners, brought a suit for pre-emption, claiming that not only he was a collateral of the vendors but also a co-sharer in the Khata of which the land in dispute formed a part. The suit was decreed ex parte on 10-9-1969. Subsequently, the ex parte decree was set aside. On 31-7-1988 the trial Court dismissed the suit on the ground that no decree could be passed in favour of the pre-emptors after 31-7-1986 as ruled in the cases of Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) and Sardar All y. Muhammad All (PLD 1988 SC 287). The petitioners filed an appeal before the District Judge, Gujranwala, and a revision petition before the High Court but these were dismissed. They now seek leave to appeal from this Court:
2. In support of this petition it is contended that after their suit has once been decreed, even though ex parte, there was no bar to a decree being passed in favour even after 31-7-1986. In support of this contention reliance is being placed upon two judgments of this Court reported as Bahadur Khan v. Muhammad Yousaf (1992 SCM R 2117) and Ghulam Rasool v. Faiz Bakhsh (1992 SCM R 1328).
3. The contention raised in support of this petition needs examination. Leave to appeal is granted.
The interim order already made to continue during the pendency of the appeal.