Mehr NOMAN KHAN vs GHULAM ABBAS and 3 others
This petition for leave to appeal arises from a suit for possession through pre-emption filed by the petitioner against the respondents regarding disputed land. The petitioner claimed a preferential right as a co-sharer and Shafi Khaleet. The trial court rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure 1908, reasoning that no law of pre-emption existed between 1986 and 1990. This decision was upheld by the District Judge and subsequently by the Lahore High Court, which further noted that the petitioner failed to fulfill the requirements of Talab under Islamic Law. The core legal question is whether the absence of statutory pre-emption law precludes the exercise of such rights and whether the courts below erred in ignoring the petitioner's pleadings and evidence regarding the necessary Talabs. The Supreme Court granted leave to appeal to examine whether Islamic Law governs pre-emption in the absence of statutory provisions and whether the courts below failed to properly consider the petitioner's evidence regarding the performance of Talab-e-Muwathibat, Talab-e-Ishhad, and Talab-e-Khusumat.
- Does Islamic Law govern the right of pre-emption in the absence of a specific statutory law during the relevant period?
- Did the courts below err in rejecting the plaint under Order VII, Rule 11 of the Code of Civil Procedure 1908 without considering the evidence regarding the performance of Talabs?
- Is the philosophy of the removal of Zarar a pre-condition to the exercise of the right of pre-emption or merely an underlying principle?
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
- Order VII Rule 11, Code of Civil Procedure 1908
ORDER
' IRSHAD HASAN KHAN, J.---Leave to appeal has been sous:7t. Under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment dated 6-11-1995, passed by the Lahore High Court in Civil Revision No, 527-D of 1992.
2. Petitioner filed suit for possession through pre-emption on 3-11-1988 against the respondents/vendees of the disputed land on the ground that he is a co-sharer and also Shafi Khaleet having preferential right to claim the land. In view of the pleadings of the parties relevant issues were framed and the parties led evidence. However, before the petitioner led evidence in affirmative and rebuttal, the respondents moved an application under Order VII, Rule 11, C.P.C. For rejection of the plaint on the ground that from 1-8-1986 to 28-3-1990 there was no law of pre- emption in the field. The application was accepted by the trial Court vide order dated 17-11-1991 and the plaint was rejected. On appeal, the District Judge, Khushab maintained the order of the trial Court. Civil revision application filed by the petitioner also failed in the High Court.
3. The learned Judge in Chamber took the view that at the time of sale there was no pre-emptive right available to the petitioner/plaintiff and even if it was available he had not fulfilled the requirement of Talab etc., which was the basic requirement of Islamic Law.
4. Learned counsel for the petitioner contended that the learned Judge in Chamber was wrong in holding that there was no law of pre-emption during the relevant period, in that, this Court has held that in the absence of statutory law of pre-emption, Islamic Law will hold the field. Reference may be made to Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 Supreme Court 1), in which the Shariat Bench of this Court held that "the removal of Zarar has been mentioned by the Jurists as the philosophy underlying the law of pre-emption and not as a pre-condition to the exercise of this right". Learned counsel for the petitioner next contended that the Courts below failed to consider that the petitioner not only pleaded all the Talabs i.e, Talab-e- Muwathibat, Talab-e-Ishhad and Talab-e-Khusumat in the suit but also led evidence which was ignored by the Courts below. Leave to appeal is granted to consider these contentions.