Sardar Muhammad Raza Khan, J.--Mst. Atta Elahi seeks leave to appeal against the judgment dated 23.12.2003 of Lahore High Court, Multan Bench whereby her writ petition has been dismissed.
2. The lady had filed a pre-emption Suit # 530 of 1987 against Karim Bukhsh etc. which, on 18.12.1988. was dismissed on the basis of this Court judgment in Kamal Shah's case (PLD 1986 SC 360), for not having alleged and performed talab-i-muwathebat etc. in a case where no decree was passed before 31.7.1986. Subsequently, on promulgation of Punjab Preemption Act 1991 and under section 35(1) thereof she applied for revival of her suit in order to prove the performance of talb-i-ishhad under sub-section (2) of Section 35 of the Act. Such application was dismissed by the trial Court as well as by the First Appellate Court. She filed a writ petition which too was dismissed through the impugned order holding that the facility of proving talb-i-ishhad under Section 35(2) of the Punjab Pre-emption Act 1991 was not available due to being a question of fact, having not been alleged in the plaint. Section 35(2) of the Punjab Pre-emption Act, 1991 reads; "(2) Notwithstanding anything in Sections 13 and 30, in respect of the suits mentioned in sub- section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad in the presence of two truthful witnesses."
3. Not only that we agree with the observation made by the learned High Court but also are of the view that the Shariat Appellate Bench of this Court in Haji Rana Muhammad Shabbir Ahmed Khan's case (PLD 1994 SC 1) has declared the provisions of Section 35(2) of Punjab Pre-emption Act, 1991 repugnant to the injunctions of Islam, in so far as it exempts the suit of pre-emption instituted or pending between Ist day of August 1986 and 28th March 1990 from the requirements of talb-i- muwathibat and because it has extended the period of limitation for such suits to one year.
4. The instant petition is also time barred by 38 days. The ground for condonation, to the effect that the time was lost in obtaining copies of Civil Court record, is also not tenable. The period which is not computed under the law is the one spent in obtaining the copies of impugned judgment or order and not for any other copies that the petitioner might require.
5. Consequently, there being no force in the hopelessly time barred petition, it is hereby dismissed and leave to appeal refused.