1. ' GHULAM MUSTAFA MUGHAL, J.--- This appeal is filed against the judgment and decree passed by Additional District Judge, Hajeera, on 31-10-2001 whereby accepting'the appeal of the respondent herein judgment and decree of the Civil Judge, Abbaspur, dated 18-4-2001, has been set aside and decree for possession on the basis of right of prior purchase has been granted in favour of the pre- emptor/ plaintiff.
2. ' Facts forming the background of the controversy are that vide sale-deed dated 7-11-1994, land measuring 11 Marlas from Khasra No,267, situated in village Wasti Chatra Abbaspur, was transferred by the vendor for consideration of Rs,66,000 to the appellant herein. Kh. Zaffar Iqbal, respondent herein, filed a suit on the basis of right of prior purchase in respect of the said land in the Court of Sub-judge Abbaspur, on 28-2-1995. It was claimed by the plaintiff/pre-emptor that the land has been sold by the vendor without prior notice to him. It was further claimed by him that consideration money has arbitrarily been fixed as Rs,66,000 in order to defeat the right of pre- emption of the plaintiff: Fact of the matter is that only Rs,50,000 were paid to the vendor and the same is market price of the land. The plaintiff claimed that he is a co-sharer in the suit-land, thus, has a preferential right of purchase vis-a-vis to the defendant-vendee.
3. ' The suit was resisted by the defendant by filing written statement. It was claimed by him that the suit-land is situated in courtyard, of the vendee, therefore, the plaintiff has no right of preemption. It was further claimed that Rs,66,000 were fixed in good faith as consideration money and the same was factually paid to the vendor. It was also claimed that the plaintiff has waived his right, if any, by participating in execution of the sale-deed.
4. ' During pendency of the suit Baqa Muhammad, vendee, became a co-sharer in the suit-land on the basis of a compromise decree passed by the Sub-Judge, Abbaspur, on 17-8-1999 in respect of some other piece of land but a part of the same Khewat. The mutation on the basis of the decree, dated 17-8-1999 was sanctioned on 10-10-2000 (Annexure DA). After necessary proceedings the learned Sub-Judge, Abbaspur, held that the defendant/vendee has improved his status, during pendency of the suit", therefore, the plaintiff is not entitled to any decree The pre-emption suit of the plaintiff/respondent herein was dismissed vide judgment and decree, dated 18-4-2001 by the learned Sub-Judge, Abbaspur. Feeling aggrieved from the judgment, Kh. Muhammad Zaffar Iqbal, pre-emptor went in appeal before the Additional District Judge, Hajeera. The learned Additional District Judge vide his judgment and decree, dated 31-10-2001, accepted the appeal and granted a decree of possession in respect of the suit-land, subject to payment of Rs,66,000. This judgment of the Additional District Judge was challenged before this Court through an appeal on 26-1-2002. My learned brother Mr. Justice Muhammad Reaz Akhtar Chaudhry, Judge (as his Lordship then was) vide judgment, dated 6-7-2002 accepted the appeal and vacated the judgment and decree of the learned Additional District Judge, Hajeera. It was held by the learned Judge that pre-emptor has to maintain his superior right at three stages i,e,. Firstly, at the time of execution of sale; secondly, on the date of institution of the suit; thirdly, on the date of decree. In the estimation of his Lordship as the defendant/vendee has improved his status by becoming a co-sharer in the property, therefore, his suit is liable to be dismissed. It was further observed in the judgment that section 20-A of the Right of Prior Purchase Act, does not affect the pending proceedings, therefore, is not attracted in the case. At this juncture, it is liable to state , that in another appeal titled Aqal Hussain v.
5. Muhammad. Aslam Khan (Civil Appeal No,66 of 2002, decided on 27-3-2004), one of us, (Mr. Justice Sardar Muhammad Nawaz Khan, Judge (as his Lordship then was) came to the conclusion that due to insertion of section 20-A, a vendee has no right to improve his status after institution of the preemption suit, therefore, dismissed the appeal filed against the judgment and decree passed by the District Judge, Sudhanuti on 22-6-2002. It may be stated that the suit of the pre- emptor in the above case was dismissed on the ground that vendee has improved his status during pendency of the suit. The learned District Judge, however, on appeal held that after amendment in Pre-emption Act in shape of section 20-A,.Improvement in C the status of the vendee after the institution of the suit was not permissible. The judgment of the District Judge was maintained by this Court vide judgment dated 27-3-2004. This judgment was also vacated by the apex Court for resolution-of the controversy by a larger Bench. The other case could not be taken up because Sardar Muhammad Shehzad Khan, Advocate, who was representing the plaintiff/appellant today has withdrawn from prosecution of the suit.
6. ' Arguing on behalf of the appellant, Sardar Muhammad Suleman Khan, the learned Advocate, inter alia, contended that section 20-A was inserted in the Right of Prior Purchase Act, through Ordinance XXI of 1998, issued on July 15, 1998. The Ordinance was made an Act of the Assembly, on 20-11-1998, As a vested right on the basis of sale-deed had already, accrued to the vendee and on the basis of which he has obtained a compromise decree, thus, has improved his status, therefore, notwithstanding the insertion of section 20-A of the Right of Prior Purchase Act, the suit was liable to be dismissed in view of section 56 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with clauses (c) and (e) of section 6 of the General Clauses Act. The learned Advocate also contended that amendment in the Right of Prior Purchase Act, has no retrospective effect, thus, will not effect the pending cases in view of the dictum of the apex Court laid down in Fazal Dad's case 1995 MLD 1299. The learned Advocate in support of his submissions also placed reliance on the following precedents:--
(1) Muhammad Hussain's case 1996 CLC 1681, (2) Fazal Dad's case 1997 SCR 178, (3) Faiz Ahmed's case 1999 MLD 1270, (4) Raja Muhammad Hayat Khan's case PLD 1998 (AJ&K) 15, (5) Muhammad Rashid's case 2001 CLC 1124 and (6) Muhammad Yousaf Khan's case 2004 CLC 333.
7. ' In. Muhammad Hussain's case, it was observed that if contrary intention does not appear in the relevant statue, the suits which were pending at the time of amendment of section 14 of the Prior Purchase Act, would be governed by un-amended provisions which were enforced at the time of institution of the suit and not in view of the amended law.
8. ' In Fazal Dad's case, it was observed that if amendment period of limitation give-retrospective effect, the suit would become hopelessly time-barred and would destroy the vested rights, therefore, old period of limitation would apply.
9. ' In Faiz Ahmed's case, it was observed that by obtaining land in the same Khewat appellant become "Shareek Khewat". If it transpire that the appellant was also "Shareek Khewat" then it was sufficient for dismissal of the suit.
10. ' In Raja Muhammad Hayyat Khan's case, the view taken in the Faiz Ahmed's case was followed and it was observed that if during pendency of the pre-emption suit it appears that vendee had acquired his status equal to the plaintiff then the suit could be rejected in exercise of powers conferred on the Court under Order VII, rule 11 of C.P.C.
11. ' In Muhammad Rashid's case, it was observed that right of preemption due to improvement of status of the vendee before institution of the suit would be defeated.
12. ' Kh. Ghulam Mohi-ud-Din, the learned counsel representing the other side, controverted the arguments and stated that after the amendment introduced in the Pre-emption Act in shape of section 20-A, a vendee cannot improve his status after institution of the suit. The learned counsel also contended that neither section 56-C of the Azad Jammu and Kashmir Interim Constitution Act, 1974 nor section 6-E of the General Clauses Act, is attracted in the present case, as there were no proceedings pending on behalf of the defendant. It was argued by him that improvements in his status is only claimed on the basis of Judgemade-law which cannot be given effect to in presence of the clear-cut provision of section 20-A of the Right of Prior Purchase Act.
13. ' We have taken into consideration the respective arguments of the learned Advocates for the parties and perused the record of the case. For proper appreciation of the matter in light of the arguments advanced on behalf of the parties, section 6 of the General Clauses Act, 1897 is reproduced as under:-- "6. Effect of repeal.--- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the appeal shall not:
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or.
14. Regulation had not been passed."
15. ' A perusal of the above reproduced provision of law reveals that section 6 deals with repeals of any enactment and protects only those rights and obligations which stood created under the Act so repealed. In the present case no provision of the Right of Prior Purchase Act has been repealed, substituted, or deleted rather section 20-A has been inserted/ added by way of amendment.
16. Through addition of the said section improvement in the status of the vendee/defendant after institution of the suit has been prohibited. In the Right of Prior Purchase Act, 1927 (B.K.) or in the Punjab Pre-emption Act, 1913 there was no provision on the basis of which improvement in the status of the vendee could be made. It was only Judge-made-law on the basis of which the practice that if a vendee improves his status by acquiring a qualification similar to that of a pre- emptor then his suit must fail. The superior Courts of the subcontinent were not unanimous on the point. One view was that a vendee-pre-emptor has every right to protect his contract/sale-deed because right to acquire property is a fundamental right and pre-emption is a draw back on the freedom of contract and the suit of the pre-emptor could be defeated through any legitimate device. In this perspective it was held that a pre-emptor in order to have a decree on the basis of right of preemption must maintain his superior right either at the time of sale, institution of the suit and at the time of final decree. The other view was that the object of law of pre-emption is to prevent the inconvenience which may result from the introduction of disagreeable stranger as coparcener or as a near neighbour. If the same is allowed to be defeated by improvement in the status of the vendee then the very purpose and object of the law would be defeated. This difference of opinion for the first time was resolved by enacting section 21-A in the Punjab pre- emption Act in 1944. In Azad Jammu and Kashmir Right of Prior Purchase Act, 1927 there is no corresponding provision but despite that the superior Courts remained following the Judge made law on the point that a preemptor should maintain his superior right at three stages mentioned hereinabove. In Azad Jammu and Kashmir, the Right of Prior Purchase Act was previously amended through Azad Jammu and Kashmir Right of Prior Purchase (Amendment) Act, 1993 to bring the same inconformity with the Injunctions of Holy Qur'an and Sunnah. Section 14 was substituted for that purpose. It appears that this target could not be achieved, hence, the Legislature incorporated section 20-A in the Right of Prior purchase Act. As stated above this section has been introduced for carrying out the Injunctions of Islam, therefore, after its incorporation no vendee can improve his status after institution of the suit. This view has been approved by the apex Court of Pakistan in Rana Muhammad Shabbir's case PLD 1994 SC 1 and Ghulam Rasool's case PLD 1993 SC 52.
17. ' In the first case the propriety and legality of section 21-A was examined with Islamic point of view and the observation of the superior Court is available at page 17 of the report. In para. No,44 it stands concluded that section 22 of the Pre-emption Act, 1991 which was earlier section 21 of the Pre-emption Act, 1913 is not repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. Relevant observation is as under:- "44. Therefore, it is held that section 22 of the Act, 1991 is not repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The judgment of the Federal Shariat Court in this respect is set aside and the appeal of the Punjab Government is accepted."
18. ' In the subsequent case the object and scope of section 21-A of the Punjab Pre-emption Act, 1913 which is corresponding provision of section 20-A of the Right of Prior Purchase Act has been discussed. The relevant observation of the apex Court is as under:-- "(6) Section 21-A of the Punjab Pre-emption Act was introduced by Punjab Act I of 1944. It provides as hereunder:- "Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor plaintiff in such suit."
(7) The statement of objections and reasons published in the Punjab Gazette, dated 15th March, 1944 while notifying the bill proposing this amendment mentions as hereunder:-- "Section 21-A is being added to the Punjab Pre-emption Act to restore the status quo in the case of pre-emption suits wherein the vendee seeks to improve his position by means of a voluntary acquisition of right of property made after the institution of the suit."
(8) Two expressions relevant to the case in hand contained therein are "status quo" and "voluntary acquisition" both relatable to vendee in pre-emption suits. Status quo will imply fixing the status of the vendee as on the date of the institution of the suit. Secondly in the case in hand, there is voluntary acquisition of right of property by the vendee after the institution of the suit. Besides, riddance of a, disqualification or a disability also amounts to change in the status quo, an improvement in status. The word "status" in the context of Pre-emption Law means position or locus standi to pre-empt a sale, to compete with the pre-emptor or to defeat the rights of a pre-emptor.
19. The word is pervasive in scope to cover and include even the shedding off a disability."
20. ' In view of above stated position we are of the considered view that neither section 56 of the Interim Constitution Act, 1974 nor section 6 of the General Clauses Act, is attracted in the present case. The Legislature has enacted this provision to protect the right of pre-emption which is a statutory right and the Courts are duty bound to give full effect to the wisdom of the Legislature especially to those laws which E have been enacted for carrying out supremacy of Sharia. We are of the view that even vested right can be taken away by amending the law, retrospectively. A reference can be made to PLD 1978 SC (AJ&K)
42. It may be observed that appellant herein cannot claim even any vested right in view of clauses "C" and "E" of the General Clauses Act because no right was conferred on him by any statute or he has acquired the same before promulgation of the Ordinance XXI of 1998. Section 20-A was firstly added through Ordinance XXI of 1998 on July 15, 1998.
21. The plaintiff obtained decree on 18-4-2001, therefore, section 20-A was already in the field when the defendant/vendee improved his status. Only those rights of a vendee could be protected which have become his property in shape of decree are otherwise before promulgation of Ordinance XXI of 1998.
22. ' The upshot of the above discussion is that finding no force in this appeal it is hereby dismissed.