MUHAMMAD KHALIL and others vs ALLAH WASAYA
This petition for leave to appeal arises from a civil revision judgment by the Lahore High Court, which affirmed the appellate court's decision to set aside a pre-emption decree previously granted to the petitioners. The petitioners had originally filed a pre-emption suit in 1988, which was initially dismissed for failure to perform the requisite Talabs. Following the enactment of the Punjab Pre-emption Ordinance, 1990, the petitioners successfully applied for the revival of their suit under section 36(2) of the Ordinance, leading to a decree in their favor. However, the District Judge subsequently set aside this decree, ruling that the plaint failed to properly aver the performance of the necessary Talabs. The High Court upheld this dismissal. Before the Supreme Court, the petitioners contended that the amended plaint sufficiently averred the Talabs and argued that the requirements under the 1990 Ordinance were less stringent than under the repealed legislation. The Supreme Court granted leave to appeal to determine whether the petitioners were correctly non-suited on the grounds of insufficient pleadings regarding Talabs, while issuing an interim order restraining the respondent from alienating the suit property.
- Does the Punjab Pre-emption Ordinance 1990 impose less stringent requirements for the performance of Talabs compared to the repealed Punjab Pre-emption Act?
- Can a pre-emption suit be dismissed for failure to aver the performance of Talabs in the plaint?
- Under what circumstances can a previously dismissed pre-emption suit be revived under section 36(2) of the Punjab Pre-emption Ordinance 1990?
- Section 36(2), Punjab Pre-emption Ordinance 1990
- Section 30(2), Punjab Pre-emption Ordinance 1990
ORDER
' AJMAL MIAN, J.---This is a petition for leave to appeal against the order dated 17-5-1994 passed by a learned Single Judge of the Lahore High Court in Civil Revision No,1329 of 1994 filed by the petitioners against the appellate judgment of the learned District Judge, Handcar, dated 15-2-1993 setting aside the pre-emption decree granted on 20-5-1992 by the learned Civil Judge to the petitioners, dismissing the same in limited.
2 The brief facts are that the petitioners filed a suit for pre-emption against the respondent on 21- 7-1988. The same was dismissed by the learned trial Court on account of non-performance of the required Talabs. Appeal and R.S.A. Were also dismissed by the learned Additional District Judge, Bakker, and a learned Single Judge of the Lahore High Court by the judgments/decrees dated 17-3- 1990 and 18-4-1990, respectively. However, upon enforcement of Punjab Pre-emption Ordinance, 1990 (Ordinance XXVIII of 1990), hereinafter referred to as the Ordinance, the petitioners on 1-10- 1990 submitted an application under section 36(2) of the Ordinance for revival of the pre-emption suit for trial on merits. Eventually, the suit was restored and it was decreed in favors of the petitioners on 20-5-1992. However, upon appeal, the learned District Judge, Bhakkar, set aside the aforesaid judgment/decree as stated above on the ground that the plaint did not aver performance of that requisite Talabs for claiming pre-emption of the sale in question. Aforesaid civil revision filed against the above judgment also failed on the same ground. The petitioners have, therefore, filed the present petition for leave to appeal.
3. In support of the above petition, Mr. S. M. Tayyab learned A.S.C. Appearing for the petitioners, has vehemently contended that in Para. 3 of the amended plaint, the required Talabs were averred and, therefore, the two Courts below are not justified in non-suiting the petitioners. His further submission is that the requirement of Talabs under section 30(2) of the Ordinance is not so stringent as it was under the repealed Punjab Pre-emption Act.
4. We are inclined to grant leave to consider the question, valeted the petitioner have been rightly non-suited on the above ground found favors with the learned District Judge and the learned Judge in Chambers. Leave is, accordingly granted. The respondent is restrained from alienating or creating any charge or encumbrance over the suit property till the disposal of the appeal arising out of the above petition.