MUHAMMAD SARWAR KHAN vs MUHAMMAD AZAM KHAN And ANOTHER

The facts culminating into the present appeal briefly stated are that vendor Muhammad Hussain executed a sale-deed in favour of vendee Muhammad Azam Khan for the land measuring 30 Kanals and I Marla alongwith Kotha' in village Nar Sher A.I Khan. Tehsil and District Bagh on November 3, 1988. The present appellant pre-empted the sale through suit instituted in the Court of Sub-Judge, Bagh on November 3, 1988. It was yet awaiting disposal before the trial Court when on March 13. 1993 an amendment was carried out in section 14 of the Right of Prior Purchase Act (hereinafter to be referred as an Act). The appellants have disclosed their preferential right on the ground that the vendor was their real uncle whereas the vendee belongs to some separate family and had no relation, whatsoever, with the vendor.

2. An application was moved on behalf of the appellants by their counsel for amendment of their suit on April 21, 1993, It was contended in the application that plaintiffs were co-sharers with vendor in the land in dispute as their father has purchased this land jointly with the vendor. A Mutation No.2432 was attested in this behalf on December 7. 1968 wherein both were shown owners of the land in dispute in equal share. It was further pleaded that due to inadvertence while drafting the suit this fact was not pleaded. They therefore sought permission that they may be allowed to incorporate this additional ground in their suit. While rejecting this application for amendment the trial Court vide its order and decree dated June 6, 1993 even dismissed the suit of the plaintiffs on the ground that in the light of the amended provisions of law, the plaintiffs were not entitled to claim decree for the right of prior purchase, because the plaintiffs-appellants were required to possess their right of prior purchase at three stages namely; at the time of execution of the sale, filing of the suit and the date of decree. The appellants availed their right of appeal before the District Judge, Bagh, which also met the same fate, vide judgment and decree under appeal.

3. Sardar Kabeer Ahmad Khan, learned counsel for the appellant argued that since the amendment was carried out in section 14 of the Act at a stage when right of prior purchase has already been exercised by his client therefore the amendment carried out in section 14 of the Act could not take away the right of his client which had already vested in him. The learned counsel further argued that the amendment carried out in section 14 was not given retrospective effect as such the suit was wrongly dismissed under this provision of law. He relying on the judgment of the learned Supreme Court of Azad Jammu and Kashmir in a case titled ' Fazal Dad v. Khadim Hussain and another', decided oft April 24, 1995, prayed that judgment recorded against his client by the Courts below may be set aside and the case be remanded to the trial Court for further proceedings in accordance with law.

4. Controverting the arguments the learned counsel for the respondent vendee argued that in pre- emption suit, the pre-emptor is required to prove that not only he had a superior right of purchase as compared to vendee at the time of sale, institution of suit but must maintain the same till the final adjudication of the suit. He argued that in the present case the appellant had lost the superior right of purchase due to amendment carried out in section 14 of the Act, therefore the Courts below have committed no error in law while dismissing his suit. The learned counsel while relying on some authorities contended that a pre--emptor has to maintain his prior right of purchase till the time final decree is passed in his favour.

5. The respective arguments of the learned counsel for the parties were considered by me. I have also gone through the record of the case and the judgment of the learned Supreme Court of Azad Jammu and Kashmir relied upon by the learned counsel for the appellant.

6. It is well-settled proposition that if law is altered during the pendency of an action, the dispute between the parties must be settled according to law as it existed when the action was initiated, and not in the light of the law that existed at the final adjudication of the dispute unless contrary is provided in the statute. The amendment carried out in section 14 of the Act cannot affect adversely the interest of those pre-emptores whose suits were instituted prior to this amendment because this amendment has not been given retrospective effect. B The learned Supreme Court in case titled ' Fazal Dad v. Khadim Hussain and another', decided on April 24, 1995, relief upon by the learned counsel for the appellant; has laid down:-- ---....The principle of three stages would apply only if the right has been defeated but repeal of the law has not defeated or taken away the right of pre-emption. In words of section 6 of the General Clauses Act, the repeal has not affected the right which had accrued under the repealed law. Thus the right is not destroyed but is protected and the change of law does not affect the right in any way. Consequently the legal proceedings will be 'continued as if the law had not been repealed'. "

7. In the present case, the sale-deed was executed in the year 1988. The suit was also filed in the same year. The amendment of section 14 of the Act was effected on March 13, 1993. Therefore this amendment had effect on the suit of the appellant. Thus the Courts below r while dismissing the suit of the pre-emptor by applying the Act.

8. In view of the above while accepting this appeal with costs, the judgments and decrees of the Courts below are set aside. As the suit has not been decided on merits by the learned Sub-Judge, I am constrained to remand the case to the said Court for further proceedings in accordance with law.