' This civil revision has been filed against the order/decree dated 21-4-1992, passed by Civil Judge 1st Class, Bahawalnagar whereby in petitioner's suit for pre-emption their plaint was rejected under Order VII, Rule 11, C.P.C. On the ground that the suit filed by the petitioner did not fulfil the requirements of Talbs under the Muslim Law; and also of the judgment and decree dated 10-6- 1992 passed by District Judge, Bahawalnagar whereby the appeal filed by the petitioner against the rejection of their plaint was dismissed by the learned District Judge, Bahawalnagar though on different grounds i,e, holding the petitioner's suit as barred by limitation.
2. The facts giving rise to this revision petition briefly stated are that respondents/defendants purchased a house measuring 7 Marlas situated in Mouza Moosa Mutation No,382 attested on 26- 12-1998 for a sum of Rs,20,000. The petitioners filed pre-emption suit against the above-mentioned sale on 26-12-1989 asserting their right of pre-emption as Shafi Jar i,e, owner of immovable property adjacent to the disputed house. It was further asserted in the plaint that on getting knowledge of the sale the petitioner immediately asserted their right of pre-emption and thus, fulfilled Talb-e-Muwathibat and Talb-e-Ishhad without failure as recognized by Muslim Law of Pre- emption because at the relevant time i,e, 26-12-1989 when the suit was filed no legislation on pre- emption was in the field. Further asserted that by filing the instant suit they also fulfilled the requirement of Talb-e-Khasumat under Muslim Law. The petitioner further claimed that despite their repeated calls the respondents/defendants failed to alienate the property in question to them by way of recognition of their right of pre-emption on the receipt of sale price of Rs,20,000. The suit was contested by the respondents who by way of filing written statement hotly refuted the plea of the petitioners that they had fulfilled the requirements of performing all the three Talbs under the Muslim Law. It was further asserted in the written statement that the suit filed by the respondent was barred by time. The respondents further claimed Rs,1,000 as price for filling the property in dispute with earth and Rs,10,000 as cost of improvement they had effected on the suit property after its purchase but before the institution of the suit. They also demanded expenditure incurred by them by way of payment of District Council Fee, etc. However, before framing of issue, respondents filed an application being under Order VII, rule 11, C.P.C. Praying therein that as the respondents failed to send registered notice in terms of section 13 of the Punjab Pre-emption Act, 1991 and that provisions of section 35(2) of the said Act have also been declared ineffective being against the Injunctions of Islam by Federal Shariat Court and further as the suit by the respondent was filed after a period of four months and suit filed by the respondents was, therefore, barred by time and, as such their plaint was liable to rejection under Order VII, rule 11, C.P.C. The learned trial Court after receiving reply from the respondents on the said application rejected the plaint of the petitioners vide order/decree dated 21-4-1992, holding that since the petitioners failed to fulfil the Talbs as required by Muslim Law of Pre-emption, hence their suit was not competently instituted.
Against the order of rejection of plaint the petitioners filed appeal before the learned District Judge, Bahawalnagar who vide his judgment and decree dated 10-6-1992 dismissed the same although on different grounds i,e, by holding that the suit filed by the petitioner was barred by time, hence this revision petition.
3. The learned counsel has argued that as the time of filing of the suit i,e, 26-12-1989 there was no law of pre-emption, hence the suit filed by the petitioners was to be regulated by the principle of Islamic Law on the subject and as the plaint filed by the petitioner did disclose the performance of Talbs the learned trial Court was not justified in rejecting petitioners' plaint. He has placed reliance on Mehr Moman Khan v. Ghulam Abbas and 3 others 2001 SCM R 1979. The learned counsel further contends that as during the pendency of petitioners' suit Punjab Pre-emption Act, 1991 was enforced and under section 35(2) of the said Act the petitioners' suit filed within one year was within time, as such the findings of the learned Appellate Court holding the petitioners' suit as barred by time are not sustainable.
4. On the other hand, learned counsel for the respondents has supported the findings of the two Courts below and prayed for dismissal of this civil revision.
5. I have heard the learned counsel for the parties and perused the relevant record.
6. A perusal of the plaint did disclose the performance of all the three Talbs, hence I am fully in agreement with the contention the learned counsel for the petitioners that the trial Court was not right in rejecting the plaint of the petitioners for non-disclosure of Talbs. VHowever, the reasoning given by the learned. Appellate Court for holding the petitioners' suit as time-barred needs consideration.
7. Admittedly petitioners filed their suit after one year of sale, the limitation has not only been provided by section 35(2) of the Punjab Pre-emption Act, 1991 for such suit but the same is also saved by subsection (2) of the said section yet the question remains whether after the pronouncement of judgment of Appellate Shariat Bench of Honourable Supreme Court of Pakistan in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province Lahore PLD 1994 SC 1 declaring the provisions of section 35(2) of the Punjab Pre-emption Act, 1991 insofar it extends the period of limitation for one year as repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and declaring that the said provision shall cease to have effect from 31-12-1993, the suit of the petitioner could still be considered within limitation in terms of section 35(2) of the Punjab Pre-emption Act. Earlier to this decision the Shariat Appellate Bench of Honourable Supreme Court of Pakistan in the case of Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 had stuck down various provisions rather the entire Punjab Pre-emption Act, 1913 being repugnant to the Injunctions of Islam as laid down in Qur'an and Sunnah and declaring the same to be ineffective from 31-7-1986 and in consequence of said judgment all the suits pending on the said date and in which no decree in favour of pre-emptor was passed till 31-7-1986 at any stage were ordered to be dismissed through subsequent judgment of the same Shariat. Appellate Bench of the Honourable Supreme Court of Pakistan in suo motu review PLD 1990 SC 865. In the instant case also petitioners' suit has not been decreed so far meaning thereby that the period of limitation of one year provided under section 35(2) of the Punjab Pre-emption Act, 1991 shall also cease to have effect from the enforcement of above-cited judgment of Supreme Court of, Pakistan in PLD 1994 SC 1 w,e,f, 31-12-1993 because the rationale behind the judgment of the Honourable Supreme Court in Haji Rana Muhammad Shabbir Khan's case cannot be different from one taken on the enforcement of Said Kamal Shah's case PLD 1986 SC 360. Had the suit of the petitioners been decreed till 31-12-1993 the situation would have been different and the provisions of section 35(2) of Punjab Pre-emption Act, .1991 would have force notwithstanding the fact that the same were declared ineffective w,e,f, 31-12-1993 but as the suit of the petitioners have never been decreed at any stage till 31-12-1993 the petitioners under no stretch of imagination or under any provision of law can take benefit of section 35(2) of the Punjab Pre-emption Act nor seek the protection provided by the said provision.
8. For what is stated above though by different angle, I am in agreement with the findings of the learned Appellate Court that the suit filed by the petitioners was barred by limitation and the Appellate Court was right in dismissing petitioners' appeal. Resultantly this revision petition has no force and the same is dismissed with no order as to costs.