1. ' NIIAN SAQIB NISAR, .1.---Succinct facts of this appeal. With leave of the Court. Are:-- Rehmat Ali, the predecessor-in-interest of the appellants, tiled a suit on 8.3.1987 pre-empting the sale effected in favour of the respondents vide mutation No, 512: dated 16.2.1987 with respect to the suit land. 'measuring 5 kanals and 16 marlas. After framing the issues and conducting the trial, the learned Civil Judge, seized of the matter, decreed the suit on 16.7.1991; by deciding all the relevant issues (note:- issue NO. 8-A is about talabs) in favour of the appellants; especially With regards to issue of Talb-i-lshhad, it was held in the very presence of pato No, 3 of the plaint and statements of PWs1 to 3 the plaintiff has succeeded to establish TALAB-E-1SHHAD' as required under section 35(2) of the Punjab Pre-emption Act, /99/". The respondents assailed this decision in appeal, which was allowed on 3.1.1994 and the learned Appellate Court by applying the provisions of the Punjab Pre- emption Act, 1991 (the Act) came to the conclusion Case of the respondent is hit by the provisions of section 13(iii)(3). Of the said Act, therefore, it can very safely be said that no Talb-I-Ishhad was made according to law by the pre-emptor. Hence, findings of the learned Civil Judge on issue No 8-A are reversed". Furthermore, in the operative part of the judgment, the learned Appellate Court opined, "In the nutshell, the respondent could not make Talb-1-1shhad according to the Punjab Pre-emption Act, 1991 and lie also did not exercise his right of pre-emption for Zaroorat or to avoid Zarar, Hence his suit was liable to be dismissed. Consequently the instant appeal stands accepted and the suit filed by the respondent is dismissed". This appellate judgment/decree was challenged by the appellants before the learned Lahore High Court in Civil Revision No, 625-D/1994, which has been dismissed through the impugned judgment dated 13.12.2002. Although the learned 'High Court has reversed the verdict of Appellate Court on Talb-i-Ishhad; but it has upheld. Its findings with regard to Zaroorat and Zara. In 'this context the provisions of Section 35(2) of the Act have been resorted to and the relevant portion of the (High Court) judgment qua Talb-i-Ishhad is:- "On this score teamed counsel for the petitioner argued that by virtue of section 35(2) of tile said statute the making of Talb-i-lshhad in writing lutd been dispensed with in the case of suits which had been filed or were pending in the interregnum between 1.8.1986 and 28.3.1990. This contention of the learned counsel Pr the petitioner is borne out by the provisions of section' 35 of the Punjab Pre- emption Act. As such it is clear that the failure of the petitioner/plaintiff to give notice of Talb-i- lshhad writing Was not sufficient to non-suit him."
2. (underlined to supply emphasis).
3. ' However, while considering the aspect of Zaroorat and Zarar the learned High Court has observed that the appellants (petitioners the High Court) has submitted that it was not required to be pleaded and proved by them in light of the judgment of the Federal Shariat Court reported as Muhammad Ismail Qureshi and others v: Government of Punjab and others (PLD 1991 FSC 80) whereby the provisions of Section 6(2) of the- Act requiring to plead/prove Zaroorat and to avoid Zarar were held to be repugnant to the injunctions of Islam; and those (provisions) ceased to have effect on 31.12.1991; learned High Court held' that such a plea was of no avail to the appellants (petitioners before the High Court) in the circumstances of the case and ordained as under:- "In the present case the suit was filed and was decreed prior to 31.12.1993. As such the provisions of section 35(1) of the Punjab Pre-emption Act Were valid lawfully applicable. To the petitioner's suit. In the circumstances, the provisions of section 6 relating to Zarar and Zaroorat were also applicable in the present case because section 6 was in effect at the relevant time. In the circumstances, since Zaroorat and avoidance of Zarar was neither pleaded nor proved, the petitioner plaintiff was bound to fail."
4. ' Leave in the matter was granted on 12.9.2008 in the following terms:-- "Learned counsel for the petitioner contends that the suit was tiled on 9.3,1987, during interregnum and in the Islamic principles governing exercise of right of pre-emption there was no requirement to plead Zarar' and `Zaroorat'. He also maintains that section 6(2) of the Punjab Pre-emption Act, 1991 did not apply retrospectively to the pending suits. It is contended that learned Federal Shariat Court in Muhammad Ismail Qureshi v. Government of Punjab and others (PLD - 1991 Federal Shariat Court 80) had declared this section 6(2) of the Punjab Pre-emption Act, 1991 as repugnant to the injunctions of Islam and as per the direction therein it ceased to be operative on 31st December, 1991. He submits that on 3.1.1994 when the learned first Appellate Court interfered, the said provision was not on the statute hook.
5. ' The contentions, inter alia,. Require consideration. We, accordingly, grant leave. Tile CP is disposed of."
6. ' Mr. Gul Zarin Kiyani, learned counsel for the appellants has contended that the suit of the appellants was pending when the Act was promulgated on 6th April, 1991, therefore, it was duty covered and saved by the provisions of Section 35(1) of the Act.-Further, that Section 6(2) of the Act ibid was declared repugnant to the injunctions of Islam in the judgment Muhammad Ismail Qureshi supra, and ceased to have effect from 31.12.1991, hence, when the first Appellate Court on 3.1.1994 applied the said provisions, those were not on the statute hook which could be resorted to for non- suiting the appellants; and the said Court on this count could not have dismissed the suit of the appellants, particularly, when this was not even an issue before the Court. The revisional Court has also committed the same error and illegality.
2. Heard. The learned High Court in order to apply Section 6(2) ibid (Zaroorat and Zarar) has categorically held that the provisions of Section 35(1) of the Act are attracted to the instant "case, and on the strength of this reasoning has ruled that Section 6(2) as being effective and valid law till 31.12.1993 should be made the basis of dismissing the appellants' suit: Therefore, the important and key question in the matter would be, whether the case of the appellants falls within the purview of Section 35 (both sub-sections inclusive) and as a result thereof, whether Section 6(2) < ibid shall be attracted or otherwise? For comprehending and resolving the proposition, it is expedient to 'reproduce the Section, which reads as under:--
35. Saving.---(1) Notwithstanding anything in any other law 14 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 preemption 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 sub-section (2), be decided " afresh according to the provisions thereof.
(2) Notwithstanding anything 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."
7. ' In Order to aptly analyze the scope of the noted Section and for the proper interpretation and applicability thereof, it seems relevant to briefly touch upon certain important developments occurring in the field of pre-emption law and the litigation. The validity of the Punjab Pre-emption Act, 1913 (Act 1913), the earlier law on the subject, finally came under scrutiny on the touchstone of the injunctions of Islam before the Shariat Appellate Bench of this Court in the case reported as Government' of NWFP through Secretary, Law Department v. Malik Said Kama! Shah (PLD 1986 SC 360) and it was declared to be repugnant thereto (Islamic injunctions); and the Court further pronounced that the said Act shall cease to have effect from 31.7.1986. The consequence of this verdict came up for consideration in Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287) wherein it was categorically enunciated,' "in the light of the foregoing analysis and interpretation of the provisions of the Constitution itself it is clear that pending cases in the pre- emption matters were to 'continue to their logical ends without a vacuum and the decrees passed in the meanwhile before 31.7.1986 would have effect accordingly. But in cases where only suits were filed or proceedings were /)ending without colonization into decrees in favour the plaintiff before that date, no fresh decree could be passed subsequently; because those laws ceased to have effect on that date such subsequent fresh decrees without contemporaneous legal support"
8. ' Nevertheless, even after the cut-off-date i.e, 31.7.1986 set out in Said Kamal's case, though there was no statutory law on the subject (of pre-emption) yet pre-emption actions (suits) were being regularly initiated; thus the question which came up for determination. Before the apex Court was,- if preemptory right can be exercised in such a situation (note: it may be mentioned that this intervening period (1.8.1986- 28.3.1990 notionally/usually is called the interregnum) and the proposition was answered in the case reported as Mst. Safia Begum versus Ibrahim and 4 others (PLD 1989 SC 314),which ruled as follows:-- "32. Another similar point, again based on a misconception and non-reading of the relevant judgments, which are undoubtedly elaborate and lengthy, has to be dealt with in the foregoing context. As it has been put, the point urged is that the. Statute Book of Pre-emption in Punjab Province has been closed and that no fresh suit for preemption could he instituted after 31st July, 1986. It is perhaps with reference to causes of actions which arose after the said date- presumably- under the Islamic Law. This again is a very unfortunate impression. It has not yet been ruled that no suit for pre-emption under the general law, other than statutory laws, would he competent regarding the cause of action arising after 31st July, 1986. To the contrary paragraph 105 of the judgment in the case of Said Kamal postulates a possibility of leaving the pre-emption law under the Islamic mandate on the same lines as are the personal laws in Islam..
9. ' It is: therefore, not correct to say that this Court has prevented the tiling of suits with new causes of action after 31st July, 1986. It would, however, be seen in individual cases when they come before the Courts, as to whether the substantive law including that of ground and Talabs as also other limitations, substantive and procedural, are complied with in accordance with the Islamic Law. For example; retrospective Talabs would not be possible at all."
10. 'Be that as it may, after the above judgment(s) sou Ordinances 'on pre-emption were enforced, such as (1) V off 1990. Dated 29.3.1990 (ii) XII of 1990, dated 29.5.1990, (iii XVIII -of 1990. Dated 27.8.1990 (iv) XXI of -1990, dated 19.9.1990, (v) XXVII of 1990, dated 26.11.1990 and (vi) IX of 1991, dated 25.2.1991. Finally, Act IX of 1991 was notified on 6.4.1991 which was assented by the Governor of Punjab on 31.3.1991. Provisions of these legislative instruments are almost homologous: akin and repetitive in nature; with a conspicuous common feature that the provisions of Section 6(2) of the Act are :found therein but it must he mentioned that there was no saving clause in the first two Ordinances either- for the protection of the pending suits filed during the interregnum under the Islamic Common/Classical Law or for the revival of those suits which were dismissed for any reason prior thereto. For the first: time such (saving) clause was 'added to Ordinance XVIII 4.1990 as per Section 36 (note:- this is similar to Section 35 of the Act). It may also he relevant to state here that Section 6 of all the afore-noted statutory enactments lays down the -qualification of the persons in whom, the right of pre-emption, vests or in other words this is the provision which had conferred the statutory right of pre-emption upon a person and-it reads as under:-- "6. Persons in whom -the right of pre-emption vests.---(1) The right of pre-emption shall vest:--
(i) firstly, in Shafi Sharik
(ii) secondly; in Shafi-Khaleet; and
(iii) thirdly,. In Shafi Jar.
11. ' Explanation.---(1) Shafi Sharik" means a person who is co-owner in the corpus of the immovable property sold.
(II) "Shafi-Khaleet" means a participator in the special rights attached to the immovabIe property sold such as right of passage, right of passage of water or right of irrigation.
(Ill) "Shari Jar" means a person who has a Tight of pre-emption because of owning an immovable property adjacent to the immovable . Property sold.
(2) . Notwithstanding anything in sub-:section (1), the right of pre-emption shall be exercisable only in case, of `Zaroorat' or to avoid 'Zarar'."
12. ' It may he elucidated that on account of interpretation and application of the successive noted Ordinances/the Act and conceiving that the provisions Of such law(s) were duly attracted, the Courts while dealing with and deciding .Preemption suits, filed/pending during the interregnum, dismissed those tor. Variety of reasons, such as, failure of the pre-emptor to make/prove talabs according to Section 13; lack of pleading/proving Zaroorat and avoiding Zarar required as per Section 6(2); and being barred by time on account of beyond the period of four months, the limitation prescribed under: Section 30 (in the Ordinance's section 31) of the Act. It is seemingly in order to cater for such situations and to save such cases, that Section. 35 ibid (Section 36 of the Ordinance) was added to the law(s); otherwise such cases would not be saved as is apparent from the opening part of the Section "Notwithstanding anything in any other law for the tune being in force". Obviously, the above reference to 'any other law' is none other than the Islamic Common/Classical law, because as Eper Safia Begum's case etc supra it is the law which was governing the suits filed during the interregnum. Therefore, by virtue of said expression Section 35(1) shall operate as a nonobstante clause, and its legal effect shall be that due to enforcement of the Act, the application of Islamic Common law has been dispensed and done away with.
13. Besides, the title as also the text of the Section supra leaves no room for doubt that the same is a saving clause and according to the rules of intermetation and construction of such a clause "it saves all the rights the party previously had, not, that it creates any new rights in his favour"
14. [Arnold v. Mayor of Graves and Corporation (1856) 69 ER 911 and it intends to prevent the enactment from interfering with rights already acquired. Thompson Bedford v. Teal (1890) 45 Ch. D.
15. 161: Gulab Chand v. Kudi Lal, AIR 1951 MB 1 (FB).]. Saving clause is usually inserted where one law is replaced or repealed by another law/enactment on the same-subject while the scope and the purport of both the laws remains the same, therefore the effect of the clause is that the rights earned under the, erstwhile law are secured, and those are retained and kept intact as if the second statute has not been passed [Halsbury's Laws of England 4th Edition, Volame 44, page 539] Saving clause as its name implies is a clause which is enforced in a statute, in order to protect or save the rights of a person which he may have acquired under the then existing law. However, to use a saving clause for construing the Act, or for extending it so as to give a wider scope to the Act, amounts to ignoring the very purpose for which it is inserted [Gulab Chand v. Kudi Lal, AIR 1951 MB].
16. Ordinarily, the saving clause found in the enactments on the same subject repeals earlier enactment/law; saves the pending lis alongwith the rights of the persons accrued to them under the repealed laws; and/or simply mandates that all the suits pending under the erstwhile law shall be decided as per that law. Be that as it may, Section 35(1) is not a usual saving clause and it is clear from its language that it has a dual character and effect, firstly it has saved certain preemption suits which were initiated or were pending during the period i.e, 31.7.1986 till 28.7.1990 and were dismissed, (note: From a plain and conjunctive reading of Section 35, it is clear that the same talks about the suits instituted or pending between the interregnum and were dismissed.
17. However, the noted section makes no mention of the period (time) of such dismissal, meaning thereby that such suits were either dismissed during the interregnum or even after the interregnum period. The only condition is that such suits were dismissed), and secondly it unmistakably has the effect of reviving such pre-emption suits. But such saviour and the revival is not absolute, unqualified or as a matter of course and the right, rather the saving and the revival is circumscribed by two main conditions (emphasis added), one, that-the right of pre-emption claimed in the earlier suit, which was instituted or pending during the interregnum (which may have been dismissed) must entail the enforcement of the right of pre-emption which is available and is conferred upon the person/pre-emptor under the provisions of the Act, obviously such pre- emption right is that, which is squarely envisaged by. Section 6 ibid (of the various Ordinances and the Act). It may he held that the saving part/character of Section 35(1) primarily is the most pivotal and vital, in the context, that had the said Section not been promulgated, regardless of the reason of dismissal, no occasion would have arisen for saving and consequent thereupon the revival of the suit(s) envisaged by sub-section. The second condition is mostly and closely' related to and linked with revival of the suits which were dismissed. But in any case the revival is not an automatic.
18. Rather subservient to an application to he filed by the aggrieved person within sixty days of the commencement of the Act. There are further two very important aspects of Section 35(1), those are, that such saving and revival of the suit shall be subject to sub-section (2) thereof, and moreover the suit so revived shall be decided afresh according to the provisions of the Act (emphasis supplied by us): in this behalf the expression shall subject to sub-Section (2), be decided afresh according to the provisions thereof' is an inbuilt and embodied exception to the saving and the revival of the suits contemplated. And falling within the purview of Section 35(J) itself (in the subsection itself).
19. ' In the above scenario, the simple and clear interpretation, meaning and application of Section 35(1) ibid can he summarized (i) that by virtue of non-obstante clause it has dispensed with any other law for the time being in force including the common/classical Islamic law, (ii) the suits during the interregnum were only saved and revived under the said provision;, and if Section 35(1) was not enforced, the continuation,. The saving and the revival of such suit was legally not possible,
(iii) the. Saving and revival was not unconditional rather it was circumscribed by the main condition that the right of pre-emption claimed in the earlier suit should be the right available to the pre-emptor under the Act i.e, the statutory right which is conferred by Section 6 of the Act, (iv) the application for the revival should be made within sixty days of the commencement of the Act by the aggrieved person, (v) such saved and revived suit shall be decided afresh according to the provisions of the Act, (vi) the decision afresh, as mentioned above, shall be subject to subsection
(2) of Section 35 (note: it may be pertinent to mention here that after the pronouncement of Haji Rana Muhammad Shabbir case supra the expression subject to sub-section (2) appearing in Section 35(1) has been rendered redundant).
20. 'Before proceeding further with the matter, it may be mentioned that Mr. Gul Zarin Kiyani, learned counsel for the appellants in very clear, unequivocal' and unambiguous terms has stated that Section 35 shall also be applicable to those suits which were filed during the interregnum or were pending then, but were not dismissed and were yet pending when Ordinance XVIII of 1990 came into force on 27.8.1990 (and the subsequent Ordinances) and The Act. We find no reason to disagree with his plea, because when Section 35 ibid is spirited, intended to salvage, save and revive the deadwood, it shall be inconceivable and ludicrous to assume and comprehend that the pending matters which were not yet dismissed, shall be excluded from the purview thereof; and shall be allowed to be dismissed and shall not be saved on the same principles meant for the saving and revival of the dismissed suit. Therefore, we are of the candid and firm view that the principle of Section 35(1) in letter and spirit shall could apply to the pending pre-emption suits as well which were filed under the Islamic Common/Classical Law, and were pending when Ordinance XVIII of 1990 came into force (and subsequent Ordinances) and finally the Act. And therefore we hold that all the conditions of the Section 35(1) shall be duly attracted to pending suits as well.
3. Adverting to the effect of Section 35(2), it undoubtedly is non-obstante clause as well as an exception or/and a proviso to Section 35(1), in this behalf we are fortified by the expressions "subject to sub-section (2)" appearing in sub-section (1) and "Notwithstanding" the nonobstante part of sub-section (2). Therefore, if sub-section (2) was not there originally and had sub-section
(1) not contained the expression "subject to sub-section (2)", the suits saved, revived under Section 35(1) and even those pending at the time when the law(s) came into force had to be simply and squarely decided on the basis of the provisions of the Act, because this is the clear mandate of Section 35(1); additionally in that scenario right of pre-emption under Section 6 of the Act as available to a pre-emptor who would initiate a fresh suit should be the right of pre-emption in the earlier suit; moreso, talabs would also be proved according to Section 13 of the Act and the limitation of the suit under Section 30 would be four months. But as held earlier, it is only due. To Section 35(2) acting as an exception/proviso to Section 35(1) that the application of Sections 13 and 30 was dispensed with to the suit(s) saved/revived and even pending at the time of enforcement of the Act. Consequently, solely on account of the sub-section (2) ibid, for the Talb-i- Muwathibat, a pre-emptor would not be required to prove it; for the Talb-i-lshhad, notice in writing required to be attested by two truthful witnesses, and sending it to the vendee through acknowledgement due was not needed; lastly; the period of limitation would be one year, rather than four months. It may he emphasized and reiterated that if this sub-section (2) was not promulgated, the pre-emptor who had initiated the preemptory action during the interregnum had to prove/qualify for the right of pre-emption and fulfill all such conditions as per se the command of sub-section (1), because this clearly provides "shall subject to -sub-section (2) be decided afresh according to the provisions thereof'.
21. ' From the above discourse the important aspect surfacing on account of the collective reading of Section 35(1) and (2) is that, it has never ever dispensed with the requirement of Section 6(2) of the Act, 1991 (Ordinance). It may be relevant to mention here that Ordinance XVIII of1990 came into force on 27.8.1990 and the suit of the appellants was pending on that date, this law contained the saving/reviving clause i.e, Section 36 and it did not exempt the appellants from the proof of Zarin and Zaroorat in terms of Section 6(2) thereof; this Section has been repeatedly appearing in -all subsequent legislations (Ordinances) and finally in the Ad of 1991, which came into force on 31.3.1991; again no exemption was granted to the suits filed during the interregnum vis-a-vis. Zarar and Zaroorat {see Section 6(2)} though the exemption was available qua (Sections 13 and 30 of the Act). At that time (note: when the noted legislations came into force) the suit of the appellants as mentioned earlier was pending and it could only therefore be saved and continued, if it fell within the purview of Section 35(1). And as the right of pre-emption under Section 6(2) of the Act was not exercisable unless the Zarar and Zaroorat were proved; because Section 6(2) is an exception to Section, 6 and reads:- -Notwithstanding anything in sub-section (1), the right of pre- emption shall be exercisable only in case of Zaroorat' or to avoid 'Zarar'", thus it was incumbent upon the Trial Court and it was obliged to dismiss the suit of the appellants straightaway on the enforcement of the Ordinance XVIII of 1990 and the successive Ordinances. And if the Court for any reason defaulted and omitted to do so, when the Ordinances were in force, it was bound, to dismiss the suit without fail on the promulgation of the Act i.e, 31.3.1991. As the mandate of Section 6(2) ibid read and applied in the light of Section 35(1) was 'essentially and immediately applicable on the rule of ipso jure, as being the command of the law itself and thus to be followed, on the above principle; (the operation of law by itself) which means it was required to be given immediate effect without recourse to any further action or step and the suit of the .Appellants was liable to be dismissed automatically and straightaway (PLD 2011 SC 842). The argument that as the provisions of. Section 6(2) of .The Act were subsequently declared repugnant to the injunctions of Islam by the Shariat Court w.e.f 31.12.1991, therefore, as the matter-was decided by the Appellate Court, Section 6(2) was not on the statute book and could not be resorted to; suffice it to say that as on the date of decree i.e, 16.7.1991 Section 6(2) was not yet declared by Federal Shariat Court as repugnant and was- a valid law, thus the learned Trial. Court could not have passed any decree in favour of the appellants against the law on 16.7.1991. Besides, that the judgment of the FSC in Muhammad Ismail Qureshi supra came under challenge before the Shariat Appellate Bench of this Court and obviously as per the law i.e, proviso to Article 203-D of the Constitution of Pakistan, 1973, the judgment ,'f FSC would not be given effect before the disposal of the appeal and as the appeal was disposed of by the Appellate Bench of the Shariat Court vide judgment reported as Hajt Rana Muhammad Shabbir Ahmad Khan versus Government of Punjab Province, Lahore (PLD 1994 SC 1) the target date declaring Section 6(2) invalid was 31.12.1993. The law i.e, Section 6(2) which was valid till the 31.12.1993 had to be given effect by the Court as mentioned earlier and the Courts were obliged in that behalf. It may be stated here that under the law , a pre-emptor is obliged to have a right of pre-emption on the date of sale; the right on the date of institution of the suit; hold the right during the pendency of the suit and must possess it till the passing of the decree i.e, date of the decree. In the instant case, much before the passing of the decree by the Trial Court as dilated above, the appellants on account of Section 35(1)(2) read with Section 6(2) of the Act lost the right of pre-emption, therefore their suit was liable to be dismissed.
4. In view whereof, we do not find any merit in this appeal which is accordingly dismissed. High Court Judgment Upheld//Dismissal of Pre-emption Suit Maintained. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.