1. ' NASIM HASAN SHAH, 3.-This petition is directed against the judgment passed by a learned Single Judge of the Peshawar High Court in R. S. A. No, 23 of 1979.
2. ' The facts briefly are that Mian Said Farid respondent, No. 1 herein, purchased the suit property, which is situated in Islampur, Tehsil Babuzai, District Swat on 23-2-1974. The petitioner herein, Khuna Gul on 9-5-1974, filed a suit in the Court of the Tehsildar, Babuzai to pre-empt the sale. The "Riwaj" was then still ruling the field. According to Article 255 of the Riwajnama Swat three different periods are prescribed within which a sale can be pre-empted depending where the pre-emptor is at the time of the sale i. e. Whether be is outside the village or outside, in India or outside, abroad. The petitioner, in this case, being only outside the village could have filed the suit within one month.
3. However, the petitioner herein, as stated earlier, filed the suit on 9-5-1974. The suit was still pending when the provincially administered Tribal Areas (Application of Laws) Regulation, 1974, was promulgated on 20-5-1974. By section 3 thereof certain laws including N.-W. F. P. Pre-emption Act, 1950 was extended to the Malakand Division. The petitioner thereupon instead of pursuing his suit in the Court of the Tehsildar, Babuzai filed another suit on 8-10-1974, for possession by way of pre- emption of the suit land, in the Court of the Civil Judge, Swat. This suit was contested by the respondent herein on various factual and legal grounds and one of the issues which arose between the parties was "whether the suit is time-barred."
4. ' The learned trial Court after recording the evidence of the parties found this issue in favour of the respondent herein and dismissed the suit of the plaintiff pre-emptor. It was held that as the period for instituting a suit for pre-emption, according to the Riwajnama, was one month provided the pre-emptor was not in his village which was the case here, the said suit was barred by time thereunder. The plaintiff pre-emptor challenged the above judgment by filing an appeal before the District Judge, Swat, who held that after the extension of the N.-W. F. P. Pre-emption Act, 1950, and the Limitation Act to Swat District on 20-5-1974, the petitioner could file a suit against the respondent within one year from 23.2-1974, under the N. W. F. P. Pre-emption Act. Since he had filed the present pre-emption suit in the Court of the Administrative Civil Judge, Swat, i. e. Within one year of the transaction in dispute the suit was, therefore, well within time. He further observed that the pre-emption suit under "Riwaj" before the Tehsildar would not stand in the way of filing the second suit in the Court of the Administrative Civil Judge, Swat, because no decision under "Riwaj" had been pronounced by the Tehsildar when the second suit was filed and the matter was still open when the Pre-emption and Limitation Acts were extended to District Swat in May, 1974. He went on to observe that the law of limitation was a matter of procedure and the question of limitation was to be decided in accordance with law of limitation as in force at the time of the institution of the suit and not according to the law prevailing at the time, when the cause of action in suit arose. Moreover, no decision between the parties had been given under "Riwaj" so the vendee respondent cannot be said to have acquired any right and title under "Riwaj" that could not be defeated by a subsequent change in the law of limitation. He, therefore, allowed the appeal and decreed the pre-emption suit.
5. ' Dissatisfied with the judgment of the District Judge, Swat, the respondent preferred a second appeal before the Peshawar High Court, which was heard by a learned Single Judge. The learned Judge, after noticing the provisions of subsection (2-a) of section 7 of Regulation II of 1974, which reads as under -- "7. Certain law to cease to operate.-(i) If, immediately before the commencement of this Regulation there was in force in the said areas any law, instrument, custom or usage having the force of law corresponding to the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument custom or usage shall, upon such commitment, cease to have effect in those Areas.
(ii) Nothing in subsection (1) Shall affect ;
(a) the previous operation of any such law, instrument, custom or usage. ' went on to point out that in the instant case during the period when "Riwaj" was still in force and the extension of Regulation II of 1974 of this area, a right was acquired by the respondent herein and the liability accrued to the petitioner herein which was not affected. He also referred to the provisions of section 6 (c) of the General Clauses Act which lays down ;- "6. Where this Act, or any (General Act) or this Act, repeals any enactment hitherto made or hereafter to be made, then unless different intention appears, the repeal shall not (c) affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed or And opined that in so far as in the present case the time during which the petitioner herein could pre-empt the sale had expired under the "Riwaj", which was the law ruling the field.
6. The subsequent pre-emption suit by the plaintiff pre-emptor having been instituted on the same time-barred cause of action was not competent.
7. ' We entirely agree. In fact, the same view was expressed in the case of Central Exchange Bank Ltd. v. Dilawar Ali Khan and others wherein it was observed :- "A suit would be governed by the law of Limitation in force when the suit was instituted, but if the defendants are able to show that the right of action had become barred under the old Act, then the title that they had acquired cannot be defeated by subsequent change in the law of limitation."
8. ' The Privy Counsel in Mst. Allah Rakhi v. Shah Muhammad Abdur Rahim and others , while dealing with the provisions of the Limitation (Amendment) Act of 1929, found' that the said Act having come into force on Ist January, 1929 would not be applicable to the suit, which was the subject of the appeal before it, as it was brought on 29th of January, 1926 and would be governed by the law of1 2 limitation, which was applicable to the suit at that time and accordingly the provisions of the amending Act would not be applicable to it. It was observed that the question whether it was barred by limitation must depend on the law of limitation, which was applicable to the suit at that time.
9. ' We are, therefore, clearly of the view that the provisions of the N.-W. F. P. Pre-emption Act, 1950 and of the Limitation Act cannot be 4 invoked so as to resuscitate and revitalize a cause of action which had become barred by time under the law of limitation prevailing before the extension of the said laws to the District of Swat on 30-5.1974.
10. ' Faced with this situation Mr. Qasim Imam, learned Advocate-on-Record for the petitioner, attempted to argue that as there was no finding of the Tehsildar, Babuzai that in the facts and circumstances of this case the clause of "Riwajnama" pertaining to the applicability of one month period of limitation governed the situation because no decision had been given on this point by the Tehsildar, Babuzai, the Courts were not justified in assuming that the cause of action had already become barred by time, ' There is no force in this plea because the learned Senior Civil Judge, who decided the civil suit, had duly recorded the evidence led by the parties and his finding on this issue, that under the "Riwaj" period of limitation, which was applicable in the facts and circumstances of this case, was indeed, one month, was given after referring to all the relevant material placed before him by the parties. This finding was not challenged before the District Judge in appeal where the sale question that was agitated was whether the limitation period prescribed in the "Riwaj" or that prescribed' in the N.-W. F. P. Act, 1950 and the Limitation Act would be applicable to this case and no question was raised that even if the "Riwaj" was applicable the clause in it prescribing one month as the period of limitation did not apply.
11. ' The overall result is that this petition must fail and is accordingly, dismissed hereby. PLD 1965 (W. P.) Lah. 628 AIR 1934 P C 77