Atir Mahmood, J. This civil revision under Section 115, CPC is directed against judgment and decree dated 07.09.2009 passed by learned Additional District Judge, Gujrat who dismissed appeal of the petitioner and upheld judgment and decree dated 22.06.2009 passed by learned Senior Civil Judge, Gujrat whereby suit of the respondent for possession through pre-emption was decreed.
2. Brief facts of the case are that respondent Muhammad Arshad filed a suit for possession through pre-emption against the petitioners alleging that the property measuring 7 kanals-2 marlas, fully described in the plaint, was sold out to the petitioners vide mutation No.686 dated 19.08.2003; that the plaintiff came to know through Haji Ghulam Hussain about the sale transaction on 01.12.2003 at 4.00 p.m. at his dera situated at Kot Allah Bukhsh in the presence of Muhammad Iqbal, Safdar Hussain and Zia Ullah; that he immediately declared his intention to pre-empt the sale; that he sent notice talb-iishhad to the petitioners through registered post A.D. but the petitioners- vendees did not admit the right of the plaintiff, therefore, the talb-i-khasoomat was fulfilled by filing the instant suit.
3. The suit was contested by the petitioners by filing written statement. Out of divergent pleadings of the parties, issues were framed. After recording evidence and hearing both sides, learned trial court decreed the suit of the respondent vide judgment and decree dated 22.06.2009. Feeling dissatisfied, the petitioners filed appeal which was dismissed by learned Additional District Judge, Gujrat vide judgment and decree dated 07.09.2009. Hence this civil revision.
4. Learned counsel for the petitioners has contended that the respondent-plaintiff was well in knowledge of the sale but he did not object to it at the relevant time; that the whole story narrated in the plaint is fabricated; that no notice was sent to the petitioners-vendees, particularly the plaintiff failed to produce the postman to make affirmative statement in his favour, as such, he failed to perform talbi-ishhad as required under the law, therefore, this civil revision be allowed, the impugned judgments and decrees be set aside and the suit of the respondent be dismissed.
He has relied upon the law laid down in case reported as Allah Ditta through LRs and others Vs. Muhammad Anar (2013 SCM R 866) and Muhammad Bashir and others Vs. Abbas Ali Shah (2007 SCM R 1105).
5. On the other hand, learned counsel for the respondent has vehemently opposed this civil revision and fully supported the impugned judgments and decrees. He has asserted that the plaintiff has been successful in proving performance of all the talbs in accordance with law. Regarding production of postman, he has asserted that the suit of the plaintiff was instituted prior to pronouncement of judgments of the Supreme Court reported as Allah Ditta through LRs and others Vs. Muhammad Anar (2013 SCM R 866) and Muhammad Bashir and others Vs. Abbas Ali Shah (2007 SCM R 1105), therefore, these will neither have any effect nor can be applied to the case of the plaintiff as no law is applicable retrospectively. He has relied upon the law laid down in cases reported as Muhammad Younis and others Vs. Essa Jan and others (2009 SCM R 1169).
6. Arguments heard. Record perused.
7. The only controversy emerges from arguments of learned counsel for the parties is as to whether a judgment of Hon'ble Supreme Court of Pakistan will have effect upon a case instituted prior to pronouncement thereof.
8. The respondent-plaintiff asserts that he sent notice talb-i-ishhad to the petitioners who denied receipt thereof. In the circumstances, it was incumbent upon the plaintiff to produce the postman to make affirmative statement in his favour but the plaintiff could not produce the postman, as such, the requirement of talb-i-ishhad could not be fulfilled by the plaintiff as held by the Hon'ble Supreme Court of Pakistan in cases cited as Allah Ditta through LRs and others Vs. Muhammad Anar (2013 SCM R 866) and Muhammad Bashir and others Vs. Abbas Ali Shah (2007 SCM R 1105).
However, learned counsel for the respondent asserts that the said judgment came after institution of the suit by the respondent-plaintiff, therefore, it cannot be applied to the plaintiff's case retrospectively whereas learned counsel for the petitioners submits otherwise. Main emphasis of learned counsel for the respondent-plaintiff is on the judgment of the apex court reported as Muhammad Younis and others Vs. Essa Jan and others (2009 SCM R 1169) which reads that the law declared by courts is not effective retrospectively and it only takes effect after announcement of the judgment or the date notified by the court. However, there are two other judgments of the Hon'ble Supreme Court which speak otherwise. Relevant portions from the latter judgments are reproduced below:
(i) Dilber Khan Vs. Muhammad Ashraf (PLD 2013 SC 171)
"Being conscious of the dicta of this Court whereby while declaring a particular law as ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and a specific cut off date as to when the judgment would take effect and further providing for saving the decision/decree passed prior thereto, we are of the view that latest judgment/verdict of this Court not falling within the above category, which enunciates the principle of law, in respect of a specific particular law by interpreting the same e.g. (preemption/rent/family) that such judgment shall be given fullest effect and should be strictly followed till the time the lis stands finally terminated/determined. Meaning thereby that it (lis) is not pending before any forum (not the apex Court); this should be irrespective when the case was instituted or the decision was passed by the first Court or subsequent courts. It is the final and conclusive judgment/opinion of the apex court deciding a question of law, or based upon or enunciates a principle of law which shall have the binding effect and should be adhered to in letter and spirit, obviously if it otherwise qualify the test of precedence over the earlier view, under the known principles of interpretation and application of the "precedent case law". In our opinion, the instant case was/is squarely covered by Pir Muhammad case at the revisional stage and the revisional Court was duty bound to decide the matter as per thereto in terms of Article 189 of the Constitution."
(Emphasis provided)
(ii) Haq Nawaz Vs. Muhammad Kabeer (2009 SCM R 630)
As to the next contention of the learned counsel for the petitioner regarding applicability of the above referred case i.e. Mian Pir Muhammad (supra), on the pending cases filed before the pronouncement of the said judgment, it may be mentioned here that proposition in hand stands answered by this Court in the case of Mst. Bashiran Begum v. Nazar Hussain and another, PLD 2008 SC 559, wherein, it was held that the requirement of mentioning the date, place and time in the plaint is also essential even in the pending cases."
(Emphasis provided)
Bare reading of above makes it crystal clear that the judgments delivered by the Hon'ble Supreme Court of Pakistan are applicable to the cases pending before the courts, however, these will have no effect upon the cases which are finally decided/determined by the apex court. As such, there arises no question as to when the case was instituted. However, if a case has ultimately been decided by the apex court, it will not be reopened on the basis of the law laid down by the apex court subsequently. The plaintiff's suit was admittedly pending when the judgment Muhammad Bashir and others Vs. Abbas Ali Shah (2007 SCM R 1105) was passed by the Hon'ble Supreme Court of Pakistan, therefore, it should have been applied to by the appellate court if it could not be done by the trial court. But the learned lower appellate court has failed to do so as the law laid down by the Hon'ble Supreme Court was binding upon it. However, this can be done by this Court even at the revisional stage because the judgments of the Hon'ble Supreme Court are binding upon all subordinate courts in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
Since the plaintiff has admittedly not produced the postman to make affirmative statement in favour of the plaintiff, the plaintiff has failed to establish the performance of talb-i-ishhad as required by law laid down by the apex court in cases reported as Muhammad Bashir and others Vs. Abbas Ali Shah (2007 SCM R 1105) and Allah Ditta through LRs and others Vs. Muhammad Anar (2013 SCM R 866), as such, the suit of the plaintiff is liable to be dismissed on this score alone.
9. For the aforementioned reasons, this civil revision is allowed, the impugned judgments and decrees are set aside and the suit of the respondent-plaintiff is dismissed.