' On 31-5-1988 Muhammad Zaman, petitioner filed a suit for possession through pre-emption against Muhammad Hanif, respondent No,1, before the Civil Judge, Itharian. The suit was dismissed vide order dated 30-6-1990 on the ground that n view of Said Kamal case (supra) the suit under the provision of Punjab Preemption Act, 1913, was not maintainable under section 36 of the Punjab Pre-emption Ordinance No,XVIII of 1990. On the application of the petitioner, the suit was revived on 12-12-1990. The order of the Civil Judge was assailed before the Additional District Judge who vide his order dated 5-11-1991 set aside the order of revival of suit dated 12-12-1990, which is being impugned through this writ petition.
2. Learned counsel for the petitioner contends that the case reported as Government of N.-W.F.P.
Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 has become effective after 31-7-1986. The present suit was filed thereafter by fulfilling the provisions of Muslim laws and hence the suit could have not been dismissed; that the order of the learned Civil Judge dated 12-12-1990 through which the suit of the plaintiff-petitioner under section 36 of the Punjab Pre-emption Ordinance No,XVIII of 1990 was revived could have not been interfered by the Additional District Judge; further that sections 6(2) and 35(2) of Punjab Pre-emption Act, 1991 were declared as repugnant to the Injunctions of Islam by the Honourable Supreme Court which decision had taken effect from December 31, 1993; that the suit was filed on 431-5-1988 and therefore the case reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 was not applicable in the present case; adds that there was no necessity to plead the element of "Zaroorat" and "avoidance of Zarar" in the plaint.
3. On the other hand, learned counsel for the respondent contends that the suit was not maintainable and it was rightly dismissed by the Civil Judge; that the revival of the suit by the Court was not in accordance with the law; that the learned Additional District Judge has rightly interfered in the order of the Civil Judge dated 12-12-1990 by accepting the revision petition and dismissing the application of the petitioner under section 36 of the Punjab Pre-emption Ordinance No,XVIII of 1990. Reliance has been placed on Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah.
200.
4. In this case, the disputed sale took place vide Mutation No, 2945 dated 27-7-1987. The suit was filed by the petitioner-plaintiff on 31-5-1988. The Punjab Pre-emption Act, 1913 ceased to exist on July 31, 1986, in view of case reported as Government of N.-W.F.P. Through Secretary Law Department v. Malik Said Kamal Shah PLD 1986 SC 360. There was no statutory law in the field till 27-8-1990 when the Punjab Pre-emption A Ordinance No,XVIII of 1990 was promulgated. In the absence of enacted law during the interregnum period Muhammadan Law of Pre-emption was applicable. In case reported as Falak Sher v. Muhammad Mumtaz and others 1992 M LD 1879 it has been observed that, "in absence of the enacted law during the interregnum period Muhammadan Law of pre-emption would apply". Learned Additional District Judge has non-suited the petitioner on the ground that Talb-e-Ishhad has not been made accordingly because notice in writing should have been given by the pre-emptor to the other party, under section 35(2) of the Act ibid which is saving provision of the Punjab Pre-emption Act, 1991, it is clearly mentioned that in a suit for pre-emption instituted between 1-8-1986 and 28-3-1990, it is sufficient for the pre-emptor to establish that he has made Talb-e-Ishhad in the presence of the truthful witness. In case reported as Muhammad Usman and another v. Khushi Muhammad and 2 others 2001 YLR 2908, it is observed that, "pre-emptor is not required to prove in strict terms the issuance of notice of Talb-e- Ishhad in accordance with the provisions of section 13(3) of Punjab Preemption Act, 1991, as this provision could not be retrospectively applied. Non-pleadings of "Zarar and Zaroorat" as mentioned in section 6(2) of the Punjab Pre-emption Act, 1991 was not required in this case because the suit was not filed under the Punjab Pre-emption Act, 1991, but the same was filed when the Islamic law of Pre-emption was enforceable. Even otherwise provision of section 6(2) of the Punjab Pre- emption Act, 1991 had been declared repugnant to the Injunctions of Islam by the Honourable Supreme Court in case Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province Lahore PLD 1994 SC 1 and the effect of the above-said judgment would be that the same had to take effect from 31-12-1993 and did not have retrospective effect. Preemptor who have filed the suit after the promulgation of the Punjab. Pre-emption Act, 1991, till 31-12-1993 was bound to plead "Zarar and Zaroorat". In view of the case reported Rana Shabbir Ahmad Khan (supra) since the "Zarar and Zaroorat", was not required under the Islamic law as held in Said Kamal's case PLD 1986 SC 360 as ruled by the Honourable Supreme Court in case reported as Ghulam Hamdani v.
Muhammad Iqbal and 9 others 1993 SCM R 1083, the irresistible conclusion can be drawn that in case filed during the interregnum period i.e, from 31-7-1986 to 27-2-1990 under the Muhammadan Law, there was no requirement of pleading of "Zarar and Zaroorat".
5. The Civil Judge fell in error while dismissing the suit of the petitioner-plaintiff vide his judgment dated 20-6-1990. Under section 36 of the Punjab Pre-emption Ordinance No,XVIII of 1990 the same was rightly revived on 12-12-1990. This order of the Civil Judge was set aside by the Additional District Judge by accepting the revision petition through the impugned order by observing that the "Zarar and Zaroorat" has not been pleaded and that the Talb-e-Ishhad has not been made because notice in writing has not been issued by the pre-emptor. These findings of the learned Additional District Judge are unwarranted and without jurisdiction.
6. For what has been discussed above, this petition is accepted. Order dated 5-11-1991 of the Additional District Judge Gujrat is set aside the order of Civil Judge dated 12-12-1990 is restored..
Parties to bear their own costs.