Mst. BASHIRAN BIBI vs MUHAMMAD KASHIF KHAN and others

ORDER

1. ' This petition in revision under section 115, Civil P.C. By the plaintiff arose out of a suit for pre- emption. Plaint was rejected under Order VII, Rule 11, C.P.0 by the trial Court on 18-6-1992 on the ground that the pre-emption suit was barred by limitation. On appeal the decision of the trial Court was maintained, on 13-3-1993 by learned Additional District Judge, Gujranwala on bar of limitation and also on account of absence of averments in the plaint about Zaroorat or avoidance of Zarar for exercising pre-emption. Thereupon. Instant Civil revision was instituted in this Court.

2. ' Relevant facts of the case briefly set out are:- 5 Kanals of land comprised in Khasra Nos.2090 and 2091 was situated at Aimnabad in Tehsil and District, Gujranwala. It belonged to Shamshad Ahmad Khan. He sold it to four persons namely Muhammad Kashif Khan, Muhammad Ali Khan sons of Muhammad Nasim Khan; Muhammad Saleem Khan son of Muhammad Rafique Khan and Muhammad Shamim Khan son of Aftab Ali Khan of Aimnabad for a sum of Rs,1,38,000 on 27-3-1989.

3. The sale was evidenced by the registered deed. Mst. Bashiran Bibi as plaintiff claimed pre-emption in respect of the sale. She asserted her superior right of pre-emption on the grounds of contiguity of her land with the land in dispute; common user of thoroughfare and source of irrigation. In para 4 of the plaint, she averred performance of necessary Talabs for exercising pre-emption. Suit was instituted on 15-11-1989.

4. ' Vendee-defendants submitted joint written statement and controverted averments in the plaint.

5. Among others, it was asserted that the land was situated within the territorial limits of Town Committee, Aimnabad and was immune from pre-emption. Before issues could be settled for trial, defendants submitted a miscellaneous petition under Order VII, Rule 11, Civil P.0 for rejection of the plaint. Plaintiff resisted the application. On its consideration, the trial Court found that the pre- emption suit was barred by limitation and dismissed it on this score on 18-6-1992. As for the preemptibility of the sale transaction, the plea was not pressed on behalf of the defendants before the trial Court. Plaintiff appealed from the decision. It was heard and dismissed by learned Additional District Judge, Gujranwala on 13-3-1993. His view was that in addition to the bar of limitation, the suit could not proceed in absence of an averment about Zaroorat or avoidance of Zarar for pre-emption in the plaint. In this behalf, learned Additional District Judge relied upon the case reported as 1993 CLC 85 (Lahore).

6. ' In case of Malik Said Kamal Shah reported as PLD 1986 SC 360, a few provisions of Punjab Pre- emption Act, 1913 were declared unlslamic by the Shariat Appellate Bench Supreme Court of Pakistan. The judgment took effect from 31st July, 1986. In the later pronouncements by the Supreme Court, whole of the Punjab Pre-emption Act, 1913 was found unworkable. It was ruled that except for a pre-emption decree already passed on or before 31-7-1986 surviving for recognition under the old law, no fresh decree upon the preferences given in it could be made. Appropriate Legislature did not enact any law on pre-emption in the Province of Punjab from 1st of August, 1986 to 28th March, 1990. There was, thus, a vacuum in the field of Statute law on pre-emption during the above period. In Mst. Safia Begum v. Ibrahim and 4 others PLD 1989 SC 314, it was held that the vacuum shall be filled in by application of Islamic law of pre-emption. On its basis, learned counsel urged that in absence of a specific prescription on question of limitation, pre-emption suit instituted by the petitioner could not be held barred by limitation. It was further urged that there was no requirement under the law of pre-emption in Islam for stating Zaroorat or avoidance of Zarar for it in the plaint. Institution of pre-emption suit itself implied Zaroorat or avoidance of Zarar.

7. Upon the above premises, impugned judgments were sought to be set aside.

8. ' From 1-8-1986 to 28th March, 1990, the Legislature in Punjab did not enact any law of pre-emption.

9. For the first time, Punjab Pre-emption Ordinance, 1990--Ordinance V of 1990 was issued by the Governor of the Province on 29th March, 1990. It was a self-contained law of pre-emption under the pattern of Islam. It also repealed the Punjab Pre-emption Act, 1913. It lapsed and was followed by Punjab Pre-emption Ordinance, 1990--Ordinance XII of 1990, on 29th May, 1990. It followed the pattern of the predecessor Ordinance. Incidently, both these Ordinances did not contain any express provision for the period falling between 1-8-1986 to 28th March, 1990. Upon lapse of Ordinance XII of 1990, a fresh Ordinance on the subject known as Punjab Pre-emption Ordinance, 1990--Ordinance XVIII of 1990 was issued on 27th August, 1990. Section 36 of the Ordinance contained a saving Clause for the suits instituted or pending during the period from 1st of August, 1986 and 28th March, 1990. Upon lapse of the Ordinance, Ordinance, XXVII of 1990 was issued on 26th November, 1990. It also contained a similar Clause. Eventually, the Punjab Legislature enacted Punjab Pre-emption Act, 1991 (Act IX of 1991) on 6th April, 1991. Saving Clause for the period between 1st of August, 1986 and 28th March, 1990 (both days inclusive) was retained in section 35 of the Act.

10. Vacuum caused on taking effect of the judgment in case of Malik Said Kamal Shah from 1-8-1986 to 28th March, 1990 was filled in retrospectively by the Legislature in section 35 of the Statute. It said that the pre-emption suits instituted or pending during the interregnum and dismissed could be resurrected within sixty days of the enforcement of the Act for their trial on merits provided the right of pre-emption claimed in them was also available under the new Act. Subsection (2) of section 35 retained a period of one year of limitation for these suits and only performance of Talb-i-Ishhad in presence of two truthful witnesses was considered sufficient in them. Section 35(2) of Punjab Pre- emption Act, 1991 was declared repugnant to Islamic Injunctions by the Federal Shariat Court with effect from 31st December, 1991. On appeal, the Supreme Court upheld the view of the Federal Shariat Court. In para. 57 of the Judgment, the Supreme Court observed, "It is, therefore, held that section 35(2) of the Act, 1991 is repugnant to the injunctions of Islam in so far as it exempts the cases pending or instituted during the period from 1st of August, 1986 to 28th of March, 1990 from the requirements of Telab-i-Muwathabat, and extends the right of limitation for them up to one year. However, the provision of sending a notice to the vendee as contemplated in section 13 of the Act, 1991, can be dispensed with in relation to these suits, because as mentioned earlier, sending of notice is not a substantive requirement in the Shariah to effect the Talab-i-Ishhad. On the contrary, it is procedural provision enacted by the legislature on the basis of expediency. Therefore, it is open for the legislature to dispense with this requirement altogether or with respect to certain cases".

11. Subsection (2) of section 6 of the Act 1990 similarly was found repugnant to Islamic Injunctions. The decision of the Supreme Court took effect on 31st of December, 1993. Prior to its taking effect on the specified day, the existing law in terms of Article 203-H of 1973-Constitution shall apply to the decision of the cases. Therefore, in accordance with the dictates of subsection (2) of section 6, existence of Zaroorat or avoidance of Zarar for exercise of pre-emption was necessary. Elements of Zaroorat or avoidance of Zarar was conspicuously absent in the plaint of the pre-emption suit.

12. There was no averment on them in the plaint. In my opinion, it was a necessary requirement of law to aver existence of Zaroorat or avoidance of Zarar for exercise of pre-emption in the plaint. Unless these were expressly pleaded, no amount of evidence could be given on them. In taking this view, I am supported by my judgment in case of Fazal Ellahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 (Lahore). It had also the support from the decision of the Supreme Court in petition for Special Leave to Appeal No,180 of 1990 where in my view about the statement of Zaroorat or avoidance of Zarar in the plaint was not interfered with. Further, case of Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870 takes the same view. Plaint of the preemption suit was, therefore, materially defective on this score. Omission in it of Zaroorat of avoidance of Zarar was fatal to the pre-emption suit. As far period of limitation, though, there was no specific prescription by the Statute law on the date of filing of the pre-emption suit on 15-11- 1989, yet in view of section 35(2) of the Punjab Pre-emption Act, 1991 covering the period of interregnum from 1-8-1986 to 28-3-1990, the period of limitation for preemption suit shall be one year. Subsection (2) was fmally struck down as unIsalamic by the Shariat Appellate Bench, Supreme Court of Pakistan with effect from 31-12-1993. The judgment shall apply prospectively.

13. Therefore, in terms of subsection (2) of section 35 of Punjab Pre-emption Act, 1991, preemption suit instituted on 15-11-1989 was in time. To this extent, the decision of the Courts below is not upheld.

14. ' As a result of the above, civil revision is dismissed in limine.