' SH. AZMAT SAEED, J.---This appeal by leave of the court is directed against the judgment dated 8- 11-2004, passed by the learned Lahore High Court, Rawalpindi Bench, whereby Civil Revision No,145 of 1992, filed by the respondents against the appellate judgment and decree, dated 9-1-1992, was accepted.
2. Brief facts necessary for the adjudication of the lis at hand are that the respondents filed a suit for possession through pre-emption against the appellants on 10-10-1989. The suit was dismissed on 26-6-1990 and revived on 9-5-1991, whereafter, the plaint was rejected by the trial Court under Order VII, Rule 11 C.P.C. On 7-11-1991, on the ground that the respondents-plaintiffs had not pleaded Zaroorat' or to avoid Zarar. Being aggrieved, the respondents filed appeal, which too failed to find favour and was dismissed, vide judgment dated 9-1-1992. Respondents filed Civil Revision No,145 of 1992, before the learned Lahore High Court, Rawalpindi Bench, which was accepted, vide judgment impugned, dated 8-11-2004, whereby it was held that the statutory provision in the Punjab Pre- emption Act, 1991, hereinafter referred to as "the Act of 1991", pertaining to "Zaroorat" or to avoid "Zarar' i,e, subsection (2) of section 6 thereof had been declared retrospectively, as repugnant to the Injunctions of Islam by the Shariat Appellate Bench of this Court in the case titled, as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1).
3. The learned counsel for the parties have been heard. At the very out set, the learned counsel for the respondents has raised a preliminary objection qua the maintainability of the instant appeal by contending that Muhammad Hussain-respondent No,1, as originally impleaded, had died prior to the institution of the Civil Petition seeking Leave to Appeal, therefore, instant proceedings 'having been initiated against a dead person, were not maintainable.
4. The learned counsel for the appellants tesponded by submitting that apparently Muhammad Hussain-respondent No,1 had died during the pendency of the Civil Revision before the learned Lahore High Court, which fact was concealed by the respondents and not brought to the notice of the Court. The appellants had no knowledge or information regarding the death of the aforesaid Muhammad Hussain at the time of the initiation of the present proceedings before this Court. Upon disclosure of the facturn of the demise of respondent No,1-Muhammad Hussain, an appropriate application under Order. XV Rule 6 of the Supreme Court Rules, 1980, was filed, which was allowed and the Legal Representatives were brought on record, who are duly represented. It is contended that the respondents should not be allowed tp take advantage of their own omission of non- disclosure of the death of Muhammad Hussain, during the pendency of the Civil Revision, before the learned Lahore High Court.
5. On merits, the, learned counsel for the appellants contended that the suit filed by the respondents, was dismissed and upon revival was to be proceeded with in terms of the Act of 1991, as enjoined by section 35 thereof. And the said Act of 1991, by virtue of subsection (2) of section 6 thereof introduced the. Concept of Zaroorat' or to avoid Zarar', as a precondition for filing and continuing a suit for pre-emption. It is the case of the appellants that Zaroorat' or to avoid `Zarar' had not been pleaded in the plaint. Therefore, the plaint was rightly rejected by the Trial Court, which Order has been maintained by the First Appellate Court. The learned counsel further contended that no doubt the requirement of `Zaroorat' or to avoid `Zarar', as a precondition for maintaining a suit for pre-emption had been declared, as repugnant to the Injunctions of the Islam by the Shariat Appellate Bench of this Court, vide judgment reported in the case of Haji Rana Muhammad Shabbir Ahmad Khan (supra). However, such judgment was to take effect from the 31st of December, 1993, as is mentioned therein. Therefore, it is contended that on the date of the rejection of the plaint i,e, 7-11-1991 and the dismissal of the appeal i,e, 9-1-1992, subsection (2) of section 6 of the said Act of 1991, was in force and the said provision was rightly applied by the trial Court and the First Appellate Court, therefore, their respective order and judgment did not suffer from any illegality, lack of jurisdiction or irregularity in the exercise of the jurisdiction, so as to warrant interference by the learned High Court in exercise of its revisional jurisdiction by way of the order impugned.
6. The learned counsel for the respondents, in response, submitted thai on the date of filing of the suit i,e, 10-10-1989, there was no requirement in law of zaroorat' or to avoid `Zarar', for maintaining a suit of preemption or for pleading, the same in the plaint. While the lis was making its way through the judicial hierarchy, the requirement of `Zaroorat' or to avoid 7arar', came and went having been introduced through a statutory provision, which was declared as repugnant to the Injunctions of Islam. Such requirement was not necessary on the date, which the matter was heard by the learned High Court and is certainly not a part of the statute today, when the matter is before this Court.
7. The contentions of the learned counsel for the parties must necessarily be examined in the backdrop of the legislative history of the law of pre-emption of the Province of the Punjab. The Punjab Preemption Act, 1913, met its sad demise w,e,f, 1-8-1986, as a consequence of the judgment of the Shariat Appellate Bench of this Court, reported as Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360). For the next almost four years, no statutory law pertaining to pre-emption was enacted in the Province of the Punjab.
Eventually,, for the first time, on 29th of March, 1990, Punjab Pre-emption Ordinance, 1990, was issued, followed by several successive Ordinances, and ultimately, the Punjab Pre-emption Act, 1991, was promulgated. In the intervening period, between the 1st of August, 1986 and the 28th 'of March, 1990, suits for pre-emption were pending, filed and decided. To address such litigation, section 35 was incorporated in the Act of 1991, which reads as follows:-- "35. Saving.---(1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive), in which the right of pre-emption was claimed as is available under this Act, shall,be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding dnything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor established that he had made Talb-i-Ishhad' in the presence of two truthful witnesses."
8. The Act of 1991, as originally enacted also provided that in order to maintain a suit, the pre- emptor must necessarily establish `Zaroorar Or to avoid `Zarar' , as was specifically mentioned in subsection (2) of section 6 thereof. The aforesaid provision was challenged (along with other provisions) on the ground of being in conflict with the Injunctions of the Islam. Eventually, the Shariat Appellate Bench of this Court, vide its judgment, reported as Haji Rana Muhammad Shabbir Ahmad Khan (supra), held that subsection (2) of section 6 of the Act of 1991, to be repugnant to the Injunctions of the Islam. The said declaration was to take effect from 31st of December, 1993, as is mentioned therein.
9. In the instant case, the suit for pre-emption had been filed in 1989 and was pending in between the 1st of August, 1986 and 28th of March, 1990, before being eventually dismissed on 26-6-1990, hence, was revived purportedly in terms of section. 35 of the Act of 1991, reproduced hereinabove. In the plaint, `Zaroorat' or to avoid 'Zarar' as not specifically pleaded and on the said basis, the plaint was rejected, which order was maintained in appeal, before being set aside and the case was remanded, vide impugned judgment, passed in the Civil Revision. While, it is the contention of the learned counsel for the respondents that in the facts and circumstances of the case, pleading of `Zaroorat or to avoid `Zarar' were not necessary. In support of his contention, the learned' counsel has primarily relied upon the judgments of this Court, reported as Ghulam Hamdani v. Muhammad 1qbal and 9 others (1993 SCMR 1083) and Haft Rana Muhammad Shabbir Ahmad Khan (supra). The operative part of the former judgment i,e, Ghulam Hamdani (supra), relied upon by the learned counsel for the respondents, reads, as follows:--- "As stated earlier, the sale took place after the judgment in Said Kamal Shah's case and the suit was filed on 5-3-1987 within one year, according to the provisions of subsection (2) of section 35 and the order of rejection having been passed on 27-10-1987 prior to 28-3-1990, the plaintiff/ appellant was legally entitled to apply within sixty days of the coming into force of the Act for revival of suit and its decision on merit but the matter being sub judice in this Court after the leave granting order the appellant could not possibly submit the application and this Court in view of the peculiar circumstances of this case can order revival of the suit and decision on merit.
However, the other objection raised by the learned counsel for the respondents of `Zaroorat' and to avoid `Zarar' requires serious consideration. In the case of Muhammad Iltaf v. Muhammad Nawaz 1992 MLD 1207 the learned Single Judge of the Lahore High. Court held that "pleading of Zaroorat or avoidance of Zarar was essential" and his view was maintained in Civil Petition No,180 of 1992 by this Court. However, the Federal Shariat Court in its judgment in case Muhammad Ismail Qureshi v. Government of Punjab PLD 1991 FSC 80 declared subsection (2) of section 6 as against the injunction of Islam and repugnant to the principle enunciated in the Holy Sunnah of Hazrat Muhammad (P.B.U.H.) for the simple reason that in Islam the right of pre-emption is itself based on Zaroorat (necessity) and to avoid Zarar (harm) as enunciated in Said Kamal Shah's case. This judgment, no doubt, is subject to appeal before the Shariat Appellate Bench of this Court and as such, the validity or otherwise of subsection (2) of section 6 being sub judice has to be left open for consideration in a future case. In the case, of Federation of Pakistan v. N.-W.F.P. Government PLD 1990 SC 1172 the Shariat Appellate Bench of this Court, though in a criminal matter, expressed the view that in a state of vacuum like the one in question the injunction of Islam as contained in the Qur'an and Sunnah shall be deemed to be the law on the subject. The appellant has pleaded Talbs in the plaint and has based his right of preemption on contiguity any participation in immunities and appendages such as the right of way. This much was sufficient to complete the pleading.Resultantly, we accept this appeal, set aside the judgments of the lower forums and remand the case to the trial Court for decision on merits and according to the new law of pre- emption." (emphasis supplied)
' In the aforesaid case, the suit for pre-emption was filed on 5-3-1987, wherein the plaint was rejected on 27-10-1987, which was challenged in appeal. The said appeal was dismissed on 22-11- 1987 and a Civil Revision met the same fate and was dismissed vide Order dated 21-3-1993. The real matter in controversy, which was eventually adjudicated upon by this Court, was whether. The proceedings could be revived in terms of section 35 of the Act of 1991. The Court concluded that the suit merited revival, as it had been pending during the period between 1st of August, ,1986 and 28th of March, 1990, as mentioned in section 35 of the Act of 1991. With reference to `Zaroorat' or to avoid 'Zarar', it was specifically noted that this Court had already held in. Civil Petition No,180 of 1992, (reported as Rab- Nawaz v. Mehmood Khan (1993 SCMR 2318)) that failure to plead the same was fatal to a suit of pre-emption. It was also noted that the Federal Shariat Court had declared subsection (2) of section 6 of the Act of 1991, pertaining to `Zaroorat' or to avoid `Zarar' against the Injunctions of the Islam and the matter at that point of time was pending before the Shariat Appellate Bench of this Court, [which eventually culminated in the judgment, reported as Haji Rana Muhammad Shabbir Ahmad Khan (supra)]. No definite finding as to the necessity of pleading 7aroorat' or to avoid Zarar' was given and the matter was left open for consideration in a future case. However, in the circumstances, the proceedings were revived with the specific direction that the suit be proceeded with and decided in accordance with the new law (i,e, the Punjab Pre- emption Act, 1991). The said direction was in consonance with the provisions of Section 35 of the Act of 1991, which stipulates in addition to the other conditions, only such suits would be revived, where the right of preemption was claimed, as is available under the Act of 1991, to be decided afresh, subject to subsection (2) of section 35 of the Act of 1991. The aforesaid situation makes it clear and obvious that there is nothing in the judgment relied upon by the respondents, which advances their case, as there is no specific finding that pleading of 7aroorat' or to avoid 'Zarar,' was not necessary.
In fact, it is stated that proceedings be revived, which must be decided under the Act of 1991.
10. The heart of the matter requiring adjudication is the effect of a declaration that a statutory provision is repugnant to the Injunctions of the Islam upon pending litigation.
' Where a provision has been challenged in terms of Chapter 3A of Part- VII of the Constitution on the ground of repugnancy to the Injunctions of the Islam and such matter is pending adjudication before the Federal Shariat Court or the Shariat Appellate Bench of, this Court; its effect upon pending litigation is dealt with by Article 203H of the. Constitution of the Islamic Republic of Pakistan, 1973, which reads as follows:-- "203H (1) Subject to clause (2) nothing in this Chapter shall be deemed to require any proceedings pending in any -court or tribunal immediately before the commencement of this Chapter or initiated, after such commencement, to be adjourned or stayed by reason only of a. Petition having been made to the Court for a decision as to whether or not a law or provision of law relevant to the decision of the point in issue in such proceedings is repugnant to the Injunctions of Islam; and all such proceedings shall continue, and the point in issue therein shall be decided, in accordance, with the law for the time being in force."
(2) All proceedings under clause (1) of Article 203B of the Constitution that may be pending before any High Court immediately before the commencement of this Chapter shall stand transferred to the Court and shall be dealt with by the Court from the stage from which they are so transferred.
(3) Neither the Court nor the Supreme Court shaltin the exercise of its jurisdiction under this Chapter have power to grant an injunction or make any interim order in relation to any proceedings pending in any other court or tribunal."
11. A bare reading of the aforesaid Article leaves no manner of doubt that notwithstanding the fact that a particular provision of law, has been challenged, all proceedings pending in any Court, shall not only continue but will be decided in accordance with the said law, which is in force at the said point of time.
12. The effect and applicability of a judgment declaring a provision of law to be repugnant to the Injunctions of the Islam, is dealt with in the proviso to sub-Article (2) of Article 203D, which is reproduced hereunder:-- ' 1Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.] "
13. It is amply clear from the above quoted provision that such declaration by way of ,judgment, shall not take effect before the expiration of the period mentioned therein. The possibility of retrospective effect of any such judgment of the Federal Shariat Court or the Shariat Appellate Bench of this Court, declaring a law to be repugnant to the Injunctions of the Islam, has been excluded, as has been held in the cases, titled as Sardar Ali and others v. Muhammad Ali 'and others ,(PLD 1988 SC 287), Raja Muhammad Akbar represented by Major Lal Khan and others v.
Iftikhar Jillani represented by his Legal Heirs, (PLD 1991 SC 71) and Aacher and others v. Dur Muhammad Usto and others ,(2001 SCMR 958).
14. As regards to the effect of a declaration that a particular provision of law is repugnant to the Injunctions of the Islam upon judgments, decrees and orders already passed by applying such provision, it was held by this Court, in the case of Sardar Ali and others (supra), as follows:- "The law is well-jettled that where the rights of the parties have judicially determined with reference to the terms of a law in force at the time of the adjudication, the finality of such a judgment will not be affected merely because the law on the basis of which that decision was rendered has subsequently been altered unless a provision is expressly made in the changed or modified law destroying the finality of the aforesaid judgment."
' It was also held by this Court, in the case of Aacher and others (supra), as under:-- "7. As is further elaborated below, it would thus seem that where a law is declared to be repugnant to the Injunctions of Islam, such declaration does not totally efface all that has taken place before the declaration and manifestly saves a decree or order, which has already emerged in the field even though such may have remained subject to further proceedings in the way of appeal, etc."
15. The upshot of the above, appears to be that with reference to the litigation pending when a provision of law is challenged, as being repugnant to the Injunctions of the Islam, all Courts are enjoined by Article 203H of the Constitution of the Islamic Republic of Pakistan, 1973, to adjudicate upon the /is before them in accordance with such challenged provision, which continuous to be in force until the date specified in the judgment declaring it to be repugnant to the Injunctions of the Islam. And such judgment will operate prospectively from the date mentioned therein, without having any retrospective effect as is stated in the Provio to sub-Article (2) of Article 203D of the Constitution. All Judgments and Order judicially determining the rights of the parties in accordance with the law challenged, remain uneffected by the subsequent decision declaring such law to be repugnant to the Injunctions of the Islam. This will hold true even if the Judgments and Orders are subject to further proceedings by way of appeal, etc; as has already been held by this Court in the judgments referred to above.
16. In the case at hand, upon revival, the plaint was rejected on 7-11-1991 and the appeal against the said order was dismissed on 9-1-1992 by applying the provisions of subsection (2) 'of. Section 6 of the Punjab Pre-emption Act, 1991, which was in force till 31st of December, 1993, i,e, the date specified in the judgment of the Shariat Appellate Bench of this Court, in the case of Haji Rana Muhammad Shabbir Ahmad Khan (PLD 1994 SC 1) (supra). The trial Court as well as the First Appellate Court complied with the command of the Constitution, as stated in Article 203H of the Constitution of the Islamic Republic of Pakistan, 1973, quoted above. The judgment of the Shariat Appellate Bench of this Court, declaring subsection (2) of section 6 of the Act of 1991, as being repugnant to the Injunctions of the Islam, does not have anyretrospective effect and could not be pressed into service to set aside or invalidate any judgment or decree passed in terms thereof prior to 31st of December, 1993, the cut-away date mentioned in the said judgment. In view of the above, the impugned judgment dated 8-11-2004 holding that the decision of the Shariat Appellate Bench of this Court in the case of Haji Rana Muhammad Shabbir Ahmed Khan v. Government of the Punjab Province, Lahore (PLD 1994 SC 1) has retrospective effect, is not sustainable in law being in violation of expressed provisions of the Constitution and the law as laid down by this Court. The order of the trial Court dated 7-11-1991 rejecting the plaint and the judgment of the appellate Court dated 9-1-1992, upholding the said order, have been passed in accordance with the law, as at that point of time, subsection (2) of Section 6 of the Act of 1991 was in force and Zaroorat,' or to avoid `Zarar' was not pleaded in the plaint, which was fatal in view of the judgment of this Court passed in Rab Nawaz v. Mehmood Khari (1993 SCMR 2318).
17. The pleading of `Zaroorat' or to avoid `Zarar' in the context of revival of a suit for pre-emption under Section 36 of the Punjab, Preemption Ordinance, 1990 (No,XVIII of 1990), which was para meteria to section 35 of the Act of 1991 came up before this Court in the case reported as Ghulam Hussain and others v. Musthaq Ahmad and others (PLD1994 SC 870). In the aforesaid judgment, Ghulam Hamdani's case (Supra) was taken note of. However, Haji Rana Muhammad Shabbir Ahmed Khan's case (Supra) was not before the Court. In the said judgment, it was observed as follows:- "Talb-i-Ishhad and statement about "Zaroorat" or avoidance of "Zarar" were conspicuously absent in the pleadings. Such suit could not be revived under the new law. Mere demand in the plaint to accept superior right of pre-emption is not sufficient compliance for restoration as contemplated under section 36 of Ordinance XVIII of 1990."
18. A matter pertaining to the applicability of Section 6 of the Act of 1991, in a post 31st of December, 1993, scenario came up before this Court, in the judgment, reported as Multan Khan and others v.
Mushtaq Ali (PLD 2008 SC 331). In the said case, the learned High Court in a suit initiated prior to 28th of March, 1990, had applied the provisions of the Act of 1991, vide judgment dated 10-2-2005 (i,e, after the 31st of December, 1993). The judgment of the learned High Court was set aside and the case remanded with the following observations: "6. After hearing the learned counsel for the parties and having gone through the record and considered the questions raised before us we have found that the conclusion arrived at by the learned Judge in Chambers in the High Court is based on mis-appreciation of evidence and law on the subject. The questions of limitation with reference to section 35 of Punjab Pre-emption Act, 1991, appears to have been not decided in the spirit of law and similarly, the requirement of this and zaroorat as well as the effect of the judgment of this Court in Haji Raja Muhammad Shabbir Ahmed Khan's case (supra) and the question regarding fulfilment of the requirement of Talbs in peculiar facts of this case were not decided in accordance with-law rather the Same have been dealt with on the basis of general proposition of law. In view of the fact that the crucial questions with regard to the superior right of pre-emption and performance of Talbs for exercise of such rights have not been properly attended and decided to the satisfaction of law, therefore, we deem it proper to send the case back to the High Court for decision of the above question in the light of evidence brought on record and law applicable at the relevant time."
19. The reference to, "the relevant point of time indicates that the law, as applicable on the day of the judgment of the trial Court and not the date of the Order of the Revisional Court is perhaps to be applied.
20. The High Court of the Province of, the Punjab to which the law in question pertains i,e, the Lahore High Court in numerous. Judgments has declined to invalidate a judgment and decree dismissing a suit for pre-emption in the absence of 7aroorat' or to avoid `Zarar' merely on the ground that after passing of such judgment and decree, subsection (2) of section 6 of the Act of 1991, had been declared, as repugnant to the Injunctions of the Islam, by this Court, in the judgment of Haji Rana Muhammad Shabbir Ahmad Khan (supra). Such judgment includes Falak Sher v. Muhammad Mumtaz and 2 others (1992 MLD 1879), Muhammad Aslam v. Jamil Ahmed (2005 YLR 2347), Mst.
Bashi ran Bibi Muhammad Kashif Khan and others (PLD 1995 Lahore 200) and Ghulam Hussain through Legal Heirs v. Muhammad Ahsan and others (2012 MLD 852). Undoubtedly, on some occasion, a contrary view has also been taken by the Lahore High Court but in each and every one of such judgments, either Ghulam Hamdani's case (supra) has been relied upon which, as noted above, postponed the adjudication of the matter to some future cases and no definitive law was laid down, as has been noted above. Furthermore, Article 203H and proviso to sub-Article (2) 'of Article 203D of the Constitution and the judgments of this Court, interpreting the same, referred to and quoted hereinabove, have not been taken into account.
21. Adverting now to the preliminary objection raised by the respondents, it appears from the record that respondents-Muhammad Hussain and Manzoor Hussain had filed a suit for pre- emption against the appellants in which the plaint was rejected and appeal was filed, which was also dismissed. In the meanwhile, respondent No,2-Manzoor Hussain had died and his L.Rs, were brought on record, subsequently, respondent No,1-Muhammad Hussain and Legal Representatives of respondent No,2-Manzoor Hussain had filed a Civil Revision before the learned High Court. During the pendency of the sai4 Civil Revision, apparently, respondent No,1-Muhammad Hussain also passed away, however, the factum of his death was not brought to the notice of the learned High Court nor his L.Rs, impleaded in the said Civil Revision. Eventually, Civil Revision was decided and the case was remanded by way of impugned judgment. The appellants filed a Civil Petition for Leave to Appeal before this Court in which respondent No,1-Muhammad Hussain and the Legal Representatives of respondent No,2-Manzoor Hussain were originally impleaded. Subsequently, it was brought to the notice of this Court that respondent No,1-Muhammad Hussain has died whereafter the appellants filed an application for impleading the L.Rs, of said respondent No,1 Muhammad Hussain, which was allowed.
22. Admittedly, the Civil Petition for Leave to Appeal was validly filed against the Legal Representatives of respondent No,2-Manzoor Hussain, subsequently, the Legal Representatives of respondent No,1- Muhammad Hussain were also brought on record, thus, at the best, the question of limitation in terms of section 22 of the Limitation Act, 1908, would arise. The time for filing of Civil Petition for Leave to Appeal-against the L.Rs, of respondent No,1-Muhammad Hussain can be enlarged and delay, if any, condoned by this Court for sufficient cause. The absence of knowledge of the death of respondent No,1-Muhammad Hussain cannot be discarded specially as he had died during the Pendency of the said Civil Revision and his L.Rs, were not brought on record. It is also not the case of the respondents that the appellants, were in the knowledge that respondent No,1-Muhammad Hussain was not alive at the time of filing of the Civil- Petition for Leave to Appeal.
Be that as it may, even if the contention of the learned counsel for the respondents is accepted, it would have no legal consequence since the impugned judgment of remand is not sustainable in law and will have to be set aside, resulting in rejection of.The plaint in the suit of pre-emption. If such -suit to the extent of the L.Rs, of respondent No,2-Manzoor Hussain is dismissed and allqwed to proceed pursuant to the remand Order by the L.Rs, of respondent No,1-Muhammad Hussain, it would result in an anomaly. Furthermore, such proceedings on behalf of the L.Rs, of respondent No,l-Muhammad Hussain would also fail and plaint rejected in view of the instant judgment, as both respondents-Muhammad Hussain , and Manzoor Hussain were co-plaintiffs in the same suit.
Consequently, the preliminary objection, raised by the respondents is of no relevance, as it does not affect the outcome of this appeal.
23. As a result of above discussion, this appeal is allowed, impugned judgment dated 8-11-2004, is set aside and the order of the trial Court, dated 7-11-1991 rejecting the plaint and, the judgment of the appellate court, dated 9-1-1992, are restored.