MUHAMMAD SHAFI vs MUHAMMAD HUSSAIN
This appeal arose from a suit for possession through pre-emption, which was initially dismissed by the trial court but subsequently decreed in favour of the appellant by the District Judge. The High Court, in a First Appeal from Order, reversed the District Judge's findings, relying on the target date of 31.7.1986 established in Said Kemal Shah's case, holding that no decree could be passed in favour of a pre-emptor after that date. The Supreme Court examined whether the litigation, having been pending before the target date and involving a decree passed on 18.7.1985, was protected under the Punjab Pre-emption Act, 1913. The Court held that since the decree was passed prior to 1.8.1986, the proceedings were governed by the Punjab Pre-emption Act, 1913, notwithstanding its subsequent repeal. The High Court's judgment was found to be contrary to the record and legally unsustainable. Exercising its power under Article 187 of the Constitution to do complete justice, the Supreme Court set aside the High Court's judgment and remanded the matter for a fresh decision on merits.
- Does the repeal of the Punjab Pre-emption Act 1913 affect pre-emption decrees passed before 1 August 1986?
- Can the Supreme Court exercise its power under Article 187 of the Constitution to condone delay in filing a petition?
- Are proceedings in pre-emption cases where a decree was passed before 1 August 1986 governed by the Punjab Pre-emption Act 1913 despite its repeal?
- Article 187, Constitution of Pakistan 1973
- Section 34, Punjab Pre-emption Act 1991
- Punjab Pre-emption Act 1913
versus , decided on .
(On appeal from the judgment/order, dated 22.12.1993, of the Lahore High Court, Lahore, passed in FAO No. 111 of 1982)
(a) Constitution of Pakistan, 1973--- --Art. 187--Pre-emption--Possession, suit for--Land, alienation of-- Sale-deed-Preferential right on basis of co-sharer ship-Agreement of sale--Limitation--Remanad of case--Pre-emption, superior right of--The appellant filed the suit for possession through pre-emption which was dismissed by the Civil Judge vide judgment and decree dated 4.10 .19 81--The appeal filed by the appellant was accepted by the District Judge vide judgment dated 23.5.1982 whereby the findings of the Trial Court were - reversed--Thereafter, the respondent filed FAO No. 111/1982-.The Single Judge of the High Court, without minutely examining the record, allowed the appeal and reversed the findings of the first Appellate Court, keeping in view the decision of PLD 1986 SC 360 and held that no decree can be passed in favour of the pre-emptor after the target date i.e. 31.7.1986. date i.e. 31.7.1986. It would be advantageous to refer below the relevant portion of the judgment passed by this Court in Bahadur Khan v. Muhammad Yousaf and another (1992 SCM R 2117, at 2120):- "The Punjab Pre-emption Act, 1913 (Act I of 1913) was also repealed through Punjab. Pre-emption Act, 19 91 (Act XI of 1991) on 6.4.1991 and it would be profitable to reproduce section 34 thereof which is more or less, identical to section 35 of the new N.W.F.P. Pre-emption Act, 1987.
"34. Repeal of Act I of 1913.-- (1) The Punjab Preemption Act, 1913 (I of 1913) is hereby repealed.
(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and -decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance' with the provisions thereof."
"On the touchstone of reasoning advanced in Rozi Khan's case, the decrees passed in favour of pre-emptores before 1.8.1986 are protected from the effect of Said Kemal Shah's case and all the further proceedings in connection therewith are to be governed and decided under the provisions of the old Act (I of 1913). In the instant case, decree in favour of the preemptor, though ex-parte, was passed on 18.7.1985 and as such the further proceedings for the setting aside thereof and le subsequent trial after its setting aside shall be governed by the Punjab Pre-emption Act of 1913 as if it had not been repealed."
8. The narration of the above facts makes it quite clear that litigation was pending before the lower Courts much before the target date i.e. 31.7.1986. The impugned judgment of the learned High Court is not supported by the record of the case rather it is contrary to the record, which appears to be void, ab initio and illegal , and under the circumstances the same is not to be sustained.
9. This Court, being apex Court, as required under Article 187 of the Constitution, has to do complete justice and mere technicality of delay, which has already been explained properly by the learned counsel for the appellant, is to be condoned.. The explanation furnished by the appellant in filing the petition late is plausible and reasonable. We accordingly, condone the delay.
10. For the above facts, circumstances and case-law the appeal is accepted, the impugned judgment is set aside, and the case is remanded to the High Court for decision afresh on merits.
The parties are left to bear their own costs.