Syed HASSAN MAHMOOD vs BASHIR AHMAD and 6 others

ORDER

' SAJJAD ALI SHAH, J.---Petitioner before us filed suit for pre-emption on 15-10-1980 against respondents/vendees on the basis of collateralship and ownership in the joint Khata. The suit was dismissed on 29-11-1983 and appeal against that was dismissed by the first appellate Court on 9- 2-1987. High Court has dismissed Regular Second Appeal.

2. It is contended on behalf of the petitioner that in this case dismissal of suit before target date of 31-7-1986 is covered by definition of "judgment and decree" as contemplated under section 34 of the Punjab Pre-emption Act, 1991, hence further proceedings are to be governed by the provisions of Old Punjab Pre-emption Act, 1913 which was operative when the suit was filed. In support, reliance is placed on the case of Muhammad Sharif v. Muhammad Sharif reported in 1992 SCM R 1129. The reported case is distinguishable for the reason that suit for pre-emption was filed by the appellant therein on the basis of joint ownership in Khata and Patti and issues were framed which were decided in favour of appellant but plaint was rejected on 27-9-1982 on Issue No, 1 on the ground that suit was deficient in court-fees. Appeal was allowed in 1984 and suit was remanded for disposal with direction to appellant to make up the deficiency. The order of remand was challenged in the High Court and it was held on 5-10-1988 that the suit had become infructuous on account of law laid down in PLD 1988 SC 827.

3. In the case of Muhammad Sharif mentioned in the above paragraph in view of exceptional circumstances that plaint was rejected on 27-9-1982 on the ground of deficiency in court-fees while other issues were decided in favour of appellant in that case and there was order of remand, hence this Court held that order of rejection of plaint under Order VII, Rule 11, C.P.C. In view of definition of word "decree" contained in section 2(2) of the Code of Civil Procedure amounted to a decree and effect of evidence already recorded on the plea of joint ownership and Khata was allowed to remain open. This case is distinguishable and does not help the petitioner in case before us.

4. In the case of Sardar Ali and others v Muhammad All and others reported in PLD 1988 SC 287 Full Bench of five learned Judges has rendered very elaborate judgment declaring effect of judgment in Said Kamal's case reported in PLD 1986 SC 360. It is held therein in very unequivocal terms that decree obtained before 31-7-1986 can be defended under the old law and if no decree was obtained before the target date in any forums, proceedings cannot be defended on the ground that they were initiated under the old law. T clinches the controversy and we find no flaw or legal infirmity in the judgment of the High Court with which no interference is warranted. In the result leave is refused and the petition, which has no merits, is dismissed.