' SHAHID WAHEED, J.---This second appeal under section 100, C.P.C. Is directed against judgment and decree dated 15-1-1996 passed by the learned Addl. District Judge, Muzaffargarh who dismissed the appellant's appeal and confirmed the judgment and decree dated 20-9-1994 passed by the learned Senior Civil Judge, Muzaffargarh whereby the appellant's suit for possession through pre-emption was dismissed.
2. Briefly the facts of the case are that the appellant on 26-10-1989 instituted a suit for possession through pre-emption regarding the suit land which was purchased by the respondent vide Mutation No, 3236 attested on 30-11-1988. In response to summons the respondent appeared before the learned trial Court and submitted a contesting written statement on 13-3-1990. The learned trial Court vide judgment and decree dated 20-9-1994 dismissed the suit declaring it as time barred. Feeling aggrieved, the appellant preferred an appeal before the learned Addl. District Judge, Muzaffargarh and the same was dismissed vide judgment and decree dated 15-1-1996.
Hence this second appeal.
3. I have heard the learned counsel for the parties and perused the record.
4. In the instant case, the Courts below, decided the case solely on the question of limitation and did not touch other aspects of the case. I am of the view that findings of the Courts below about the limitation in view of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Abdul Waris v. Muhammad Yousaf (PLD 1997 SC 366) are not valid and the suit was filed within the prescribed period of limitation as sale mutation is dated 30-11-1988 and the suit was filed on 26-10-1989 i.e, within one year of the aforementioned mutation. Learned counsel for both the parties are of the same view on this point.
5. I have held above that the findings of the learned Courts below qua period of limitation was erroneous and, therefore, now a question arises that whether the case, be remanded to the trial Court for determination of other issues involved in the case after recording evidence. In the given facts and circumstances of the case, besides question of limitation, the appellant, under the law, was also required to B first assert `Zaroorat' or avoidance of `Zarar' in the plaint and then to prove it through evidence. This question was raised during the course of arguments before this Court on 3- 12-2003 and the learned counsel for the appellant sought time to examine this point. Today, learned counsel for the appellant could not submit any convincing argument but prayed that this issue would be resolved only after recording of evidence. In my view remand of the case would not be, in the interest of justice. In the instant case the element of `Zaroorat' or avoidance of `Zarar' is conspicuously absent in the plaint of the pre-emption suit. There is no averment on them in the plaint. The Hon'ble Supreme Court of Pakistan in the case of Rab Nawaz v. Mehmood. Khan (1993 SCMR 2318) has held that `Zaroorat' or avoidance of `Zarar', being question of fact, unless same is expressly pleaded, could neither be implied nor as rule be exist by merely asserting pre-emption.
This judgment was followed by this court in the case of Ms. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lah. 200) and relevant extract thereof reads as under:- "In my opinion, it was a necessary requirement of law to aver existence of Zaroorat or avoidance of Zarar for exercise of preemption in the plaint. Unless these were expressly pleaded, no amount of evidence could be given on them. In taking this view, I am supported by my judgment in case of Fazal Ellahi and 2 others v. District Judge, Attock and 3 others 1993 CLC 85 (Lahore). It had also the support from the decision of the Supreme Court in petition for Special Leave to Appeal No, 180 of 1990 where in my view about the statement of Zaroorat or avoidance of Zarar in the plaint was not interfered with. Further case of Ghulam Hussain and others v. Mushtaq Ahmad and others PLD 1994 SC 870 takes the same view. Plaint of the preemption suit was, therefore, materially defective on this score. Omission in it of Zaroorat or avoidance of Zarar was fatal to the pre-emption suit. As far- period of limitation, though, there was no specific prescription by the Statute law on the date of filing of the pre-emption suit on 15-11-1989, yet in view of section 35(2) of the Punjab Pre- emption Act, 1991 covering the period of interregnum from 1-8-1986 to 28-3-1990, the period of limitation for pre-emption suit shall be one year."
' The similar view has been expressed in the case of Fazal Elahi and 2 others v. District Judge Attock and 3 others (1993 CLC 85) wherein it has been held as followed:-- "Neither `Zaroorat' nor avoidance of `Zarar' which were necessary for exercise of right of pre- emption under the new Act was pleaded in the plaint of the pre-emption suit :dismissed on 28-7- 1990, therefore, suit could not be resurrected for decision afresh."
' In this regard it would be advantageous to refer the judgments rendered in the case of Falak Sher v. Muhammad Mumtaz and 2 others (1992 MLD 1879), Fazal Din v. Farzand Ali and others (2004 YLR 927) and Atta Muhammad v. Dost Muhammad and others (NLR 2004 CLJ 451) wherein the above referred principle has been reiterated.
6. There is yet another angle to address the question of `Zarar' and `Zaroorae. In the instant case the date of sale of suit land was 30-11-1988 and the date of institution of suit was 26-10-1989. Both said dates fell prior to cut off date 31-12-1993 fixed by the Hon'ble Supreme Court, of Pakistan in Shabir's case (PLD 1994 SC 1), but decree was passed on 20-9-1994 when provisions of section 6(2) of Punjab Preemption Act, 1991 which dealt with `Zaroorar or avoidance of `Zarar' were no longer in, force. The appellant/ plaintiff could only have succeeded by proving the right of pre-emption as it existed on three dates i.e, date of sale, date of filing of suit and date of decree. The appellant/ plaintiff was required to assert `Zaroorat' and avoidance of `Zarar' in the plaint but he did not discuss this fact in plaint and, therefore, failed to establish his right of pre-emption on date of institution of suit. In this regard reference may be made to the case of Fateh Din Shah v. Ahmad Khan (2006 MLD 934).
7. In view of what has been discussed above, this appeal is dismissed with no order as to cost.