Mehr MOMAN KHAN vs GHULAM ABBAS and 3 others
This civil appeal arose from a suit for possession through pre-emption, which was dismissed by the trial court following the rejection of the plaint under Order VII, Rule 11 of the Code of Civil Procedure 1908. The trial court's decision, which was subsequently upheld by the appellate court and the High Court in revision, was based on the contention that no statutory law of pre-emption existed and that the necessary 'Talabs' had not been performed. The core legal question before the Supreme Court was whether a pre-emption suit could be dismissed on the ground of the absence of statutory law, despite the existence of Islamic principles governing such rights. The Supreme Court held that, pursuant to established precedents, pre-emption suits are to be regulated by the principles of Islamic Law even in the absence of specific statutory provisions. Consequently, the Court set aside the impugned orders, ruling that the case should be decided on its merits, and remanded the matter to the trial court for a fresh decision.
- Can a suit for pre-emption be rejected solely on the ground that no statutory law of pre-emption exists?
- Are pre-emption suits governed by the principles of Islamic Law in the absence of specific statutory provisions?
- Is it appropriate to reject a plaint under Order VII Rule 11, Code of Civil Procedure 1908, after evidence has already been recorded in a pre-emption suit?
- Order VII Rule 11, Code of Civil Procedure 1908
ORDER
' By the impugned judgment the learned Judge in the High Court while dismissing the revision petition filed by the appellant (plaintiff) maintained the judgment of the Appellate Court and upheld the order of rejection of plaint passed by the trial Court. The appellant had filed suit for possession through pre-emption and after filing of written statement the suit proceeded for some time in the trial Court and evidence was recorded. However, at later stage the defendant/respondents submitted application under Order VII, rule 11, C.P.C. For rejection of the plaint on the ground that there was no law of pre-emption, therefore, right of pre-emption could not be enforced and that no "Talab" had been made and, therefore, the suit could not be decreed.
This application was accepted and the plaint was rejected. This order was affirmed in appeal and maintained in revision.
2. The learned counsel submitted that in view of the rule laid down in PLD 1989 SC 314 and PLD 1993 SC 1083, the pre-emption suits were to be regulated by the principle of Islamic Law even if there was no statutory law governing pre-emption. He also referred to para. 4 in the plaint to prove that the allegation regarding both the "Talabs" had been made. In view of the application of Islamic Law as enunciated in the above judgments and on account of pleadings, we are of the view that the case could be decided on its own merits. The impugned orders are, therefore, rightly not maintainable. Resultantly, we accept this appeal, set. Aside the impugned order and remand the case on the trial Court for fresh decision on merits.
Cited by 3 cases
- Syed Altaf Hussain Shah etc vs Multi-Professional Cooperative Housing 2020 CLC 1119, 2020 PLJ Islamabad 103
- MUHAMMAD HUSSAIN and another vs Ch. MUHAMMAD SHARIF through L.Rs, and another 2010 CLC 740
- Syed Altaf Hussain Shah, etc vs Multi Professional Cooperative Housing 2020 [M] C L R 690