SHAH MUHAMMAD and anothers vs MUHAMMAD HUSSAIN and another
This matter concerns a review petition filed against an order of the Supreme Court of Pakistan which had previously refused leave to appeal in a pre-emption suit. The petitioners originally filed a suit for pre-emption in 1982, which was decreed in 1987. However, the appellate court set aside this decree, citing the Supreme Court's decision in Said Kamal's case regarding the limitation on pre-emption decrees after July 31, 1986. Following the enactment of the Punjab Pre-emption Act, 1991, the petitioners sought revival of their suit under Section 35 of that Act, but their application was rejected by the lower courts. Upon review, the Supreme Court examined whether the petitioners were denied a fair hearing and whether their case was correctly dismissed in light of the applicable law. The Court held that because the suit was pending during the relevant period and the application for revival was timely, the matter required deeper consideration, particularly regarding the performance of 'Talab-e-Ishhad' in the presence of witnesses. Consequently, the Court recalled its previous dismissal order to allow for a full hearing on these contentions.
- Can a suit for pre-emption pending between August 1, 1986, and March 28, 1990, be revived under Section 35 of the Punjab Pre-emption Act 1991?
- Is the performance of 'Talab-e-Ishhad' in the presence of two truthful witnesses a matter requiring in-depth judicial consideration in pre-emption cases?
- Section 35, Punjab Pre-emption Act 1991
' FAZAL ILAHI KHAN, J.---In this petition review is sought for against the order dated 22nd November, 1993, passed by this Court in C.P.S.L.A. No,345 of 1993 refusing to grant leave to appeal.
2. Facts of the case briefly stated are that on 19-7-1982 petitioners filed suit for pre-emption in relation to the registered sale-deed attested on 27-7-1981 asserting their superior right of pre- emption on their being co-sharer in Khata and co-sharers in amenities etc. The spit was decreed on 6-12-1987 by Civil Judge, Chakwal on the ground of they being heirs of vendor and co-sharers in the Khata and the amenities. The vendees/respondents appealed against the judgment and decree dated 6-1-1987 and the learned Additional District Judge was pleased to accept the same, aside the judgment and decree on the ground that no decree could have been passed after 31-7- 1986; placing reliance on Said Kamal's case reported in (PLD 1986 SC 360).
3. An application was moved under section 35 of the Punjab Pre-emption Act, 1991, hereinafter to be referred as the Act, for revival of proceedings and re-decision of the suit. This application was contested where after the learned Additional District Judge rejected the application vide order dated 4-3-1992. Revision Petition (Civil Revision No,431 of 1992) filed against the order of rejection of the application was dismissed by the learned Judge of the High Court on 6-4-1993 against which the aforementioned leave to appeal petition was filed.
4. When the petition came for hearing in Court on 22-11-1993 a request made on behalf of learned counsel for the petitioners for adjournment of the case was not acceded to and the petition was dismissed with an observation that on going through the record the question raised in the petition concluded by the pronouncement of this Court.
5. Learned counsel for the petitioners raised two-fold contentions before us in support of his petition for review: Firstly, that he has not been afforded an opportunity of hearing and secondly, that case of the petitioner was not covered by the authorities relied upon by the learned High Court in its judgment dated 25-4-1993 dismissing his revision petition in liming.
6. After hearing the learned counsel for the petitioners and going through the record it may be pointed out that the petitioner's suit was pending between 1st day of August, 1986 and 28th March, 1990 and right of pre-emption was claimed on the grounds available under this Act. Section 35 of the Act was pressed into service and the application was made, within the period provided for making such application, before the Additional District Judge who had disposed of their appeal on merits. The question; whether, "Talab-e-Ishhad" was made in the presence of two truthful witnesses is a matter which required in depth consideration and for that we feel that an opportunity of hearing is to be afforded to the parties. Accordingly, the order dated 22-11-1993, dismissing the petition for leave to appeal, is recalled and to consider the above contentions.