GHULAM NABI and others vs SHER MUHAMMAD through Legal Heirs
Three pre-emption suits were filed, including one by Sher Muhammad and Mst. Sohagin, whose plaint was rejected for want of cause of action and deficiency in court-fee. On appeal, the High Court remanded the case with directions to afford an opportunity to make up the court-fee deficiency. The petitioners challenged the remand order before the Supreme Court, contending that no pre-emption decree was passed in favour of the respondents prior to the ruling in Said Kamal Shah's case (PLD 1986 SC 360) and the enactment of the new Pre-emption Act in 1991, rendering any subsequent decree legally impossible and the remand an exercise in futility. The core legal question is whether remand for making up court-fee deficiency is justified when subsequent legal developments bar the ultimate decreeing of the suit. The Supreme Court granted leave to consider the contention and suspended the operation of the impugned judgment pending appeal. The key principle is that remanding a case for procedural compliance is unwarranted if substantive law ultimately bars the granting of relief.
- Whether a case should be remanded to allow the plaintiff to make up a deficiency in court-fee when subsequent legal changes bar the decreeing of a pre-emption suit?
- Can a pre-emption suit be decreed after the promulgation of the new Pre-emption Act of 1991 if no decree was passed in favour of the plaintiff prior to Said Kamal Shah's case?
ORDER
' MUNIR A. SHEIKH, J.---Three suits to pre-empt the sale made in favour of the petitioners were filed in the trial Court. Suit No,226 of 1967 filed by Fateh Khan was dismissed as withdrawn; the plaint of Suit No,315 of 1964 filed by Sher Muhammad and Mst. Sohagin was rejected for want of cause of action and also non-compliance with the order of the Court to make up deficiency in the court-fee; the third suit filed by Sajjad Hussain alias Ejaz Hussain and Kaniz Kulsoom alias Shamim Akhtar was, however, decreed through judgment, dated 21-12-1970.
2. The judgment impugned in this petition has been passed in appeal filed by Sher Muhammad and Mst. Sohagan and the case has been remanded by giving direction that before proceedings to reject the plaint of their suit, they should have been given opportunity to make up deficiency in the court-fee.
3. Learned counsel for the petitioners submitted that at no stage of the proceedings before 31-7- 1986 when the judgment is Said Kamal Shah's case (PLD 1986 SC 360) became effective, a decree of pre-emption was passed in favour of Sher Muhammad and Mst. Sohagan, therefore, in view of the law declared subsequently by this Court and also as provided in the new Preemption Act promulgated in 1991, their suit cannot now be decreed even if there are granted time to make up deficiency in the court-fee and the same is made good and they are held to right of pre-emption according to the old Pre-emption Act, as such, the remand of the case was not justified and proceedings after remand would be exercise in futility.
4. Leave is granted to consider, inter alia, the above contention.
5. The operation of the impugned judgment, dated 26-1-2001 of the Lahore High Court is hereby suspended and further proceedings before the trial Court shall remain stayed till the disposal of the appeal.
6. Since short point is involved in this appeal, therefore, the same shall be listed for hearing in the month of November, 2001.