MRS. FAKHAR-UN-NISA KHOKHAR, J.- The brief facts in the instant Civil Revision are that the petitioners filed a suit for possession through pre-emption on 14.11.1992 in respect of house situated within the Municipal limits of Mandi Baha-ud-Din. The suit was contested by filing a written statement by the respondent. Whereupon, ten issues were formulated from the pleadings of the parties. During the pendency of the suit an application under Order VII, Rule 11, CPC for rejection of the plaint was filed on 15.6.1993. The reply was filed by the adverse party to the said application. The learned Trial Court vide judgment and decree dated 18.10.1993 rejected the plaint holding that no right of pre-emption can be exercised in respect of the disputed property. The petitioners filed an appeal before the learned District Judge which was also dismissed vide impugned judgment and decree dated 6.7.1995. The concurrent findings of both the learned Courts below are challenged in the instant Civil Revision.
2. The arguments advanced by the learned counsel for the petitioners are that application under Order VII, Rule 11, CPC was not competent. Section 2- A of the Punjab Pre-emption Act, 1991 was declared to be repugnant to the Injunctions of Islam on 30.5.1991. He has relied on Muhammad Ismail Qureshi and others v. Government of Punjab and others (PLD 1991 F.S.C. 80) wherein it was held that the said provision will cease to be effective on 31.12.1991 unless amended a altered by the Provincial Legislature to bring it in conformity with the Injunctions of Islam and the learned Courts below erred-in-law holding that the suit instituted on 14.11.1992 for pre-emption sale having taken place on 15.7.1992 in respect of urban immovable property is not pre-emptiable. In case reported as Haji Rana Muhammad Shabhir Ahmad Khan v. Government of Punjab Province (PLD 1994 SG 1) the Hon'ble Supreme Court fixed a date directing that the said provision is repugnant to the Injunctions of Islam and will cease to have effect, does not mean that it will operate prospectively.
The Hon'ble Supreme Court has affirmed the judgment of the Federal Shariat Court which would mean that the target date given by the Federal Shariat Court will remain inoperative.
3. The learned counsel for the respondent submits that both the judgments passed by the learned Courts below are well-reasoned and passed in view of the latest judgment of the Hon'ble Supreme Court. He further argued that the sale took place on 15.7.1992. The suit was filed on 14.11.1992 and decided on 18.10.1993. On all these three stages the suit for preemption on urban property was barred, In view of Article 203-D, Proviso-2 the Hon'ble Supreme Court always fixes the target date in law.
4. I have heard the learned counsel for the parties and have perused the record.
5. The judgment of the learned Trial Court affirmed in appeal that in view of the principle laid down in PLJ 1993 Kar. 387 it is settled that the suit shall be proceeded according to the Punjab Pre- emption Act, 1991 and Section 2(a) of the said Act will apply as such to the subject-matter of the dispute in the present suit and the suit for pre-emption on urban property shall be excluded from the purview of pre-emption. The Court further observed that although the issues were drafted in the disputed suit but since it is clear that the disputed property is not pre-emptiable the plaintiff has got no cause of action as such, therefore, recording of evidence would be futile exercise and if at any stage the right exists for the defendant the right cannot be taken away by prolonging the proceedings of the suit, Therefore, the learned Trial Court rejected the plaint under Order VII, Rule 11, CPC. Article 203-B is reproduced as below:- "Court" mean the Federal Shariat Court constituted in pursuance of Article 203-C, "Judge" means.
Judge of the Court, "law" includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or Tribunal or, until the expiration of ten years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or banking insurance practice and procedure."
The ratio adopted in the judgments Mst. Bashiran Bibi v. Muhammad Kashif Khan (PLD 1.995 Lah.
200), Govt, of N.-W.F.P, through Secretary, Law Department v. Malik, Said Kama! Shah (PLD 1986 SC 360), Mst. Safia Begum v. Ibrahim and 4 others (PLD 1989 SC 314), Fazal Ellahi and 2 others v. District Judge, Attock and 3 others (1993 CLC 85) is that the Hon'ble Supreme Court in Haji Rana Muhammad Shabhir Ahmad Khan v. Govt, of Punjab Province, Lahore (PLD 1994 SC 1) held that the provisions of Sections 6(2) .And 35(2) and Section 2(a) of the Punjab Pre-emption Act, 1991 being repugnant to the Injunctions of Islam is with effect from 31.12.1993. Therefore, the learned Courts below have adopted the right course for rejection of plaint under Order VII, Rule 11, CPC as the affect of the judgment of the Hon'ble Supreme Court is prospective, It is further held in Qazi Muhammad Shahab-Ud-Din v. Muhammad Qasim (1996 CLC 480) that the right of pre-emption in respect of the immovable property situated within urban area of Town Committee which could be exercised with effect from 31.12.1993 in view of the decision of Supreme Court (PLD 1994 SC T), the plaintiff could not exercise the right with respect to suit land at initial stage on 4.11.1993 as on that date which was date of sale of property in dispute- right of preemption was not available in respect of suit property situated within Town Committee. Plaint of pre-emptor was rightly rejected, in circumstances Of the case.
6. Therefore, finding no substance in the instant Civil Revision the same is dismissed.
7. No order as to costs.