1. ' NASIM HASAN SHAH, J.-This appeal by leave of this Court is directed against the judgment of a learned Single Judge of the Peshawar High Court dated 11-10-1973 accepting the second appeal arising out of a pre-emption suit. The facts briefly stated are that Karim Bakhsh, Qadir Bakhsh and Faqir Bakhsh, Respondents Nos, 2 to 4 herein sold 4200 sq. Ft. Of land out of Khasra No, 434 measuring 4 Kanals 4 Marlas situate in Mahal Tukra No, 1, Peshawar to Mistri Abdul Hamid, the appellant herein, on the basis of a sale-deed executed on 19-11-1951 and registered on 24-11-1951 Malik Amir Khan, Respondent No, 1 herein, claiming that he had a preferential right to the vendees inasmuch as the land owned by him was contiguous to the land in suit and he was also a participator on the immunities and appendages of this land filed a suit for possession of the aforesaid land by pre-emption. Respondents Nos, 2 and 4 contested the suit. A large number of the issues were framed, out of which the following two are relevant for our present purpose :-
(1) Whether the plaintiff viz. Malik Amir Khan had superior right of pre-emption as against the vendee-defendant ?
(2) What was the effect of the decision in Suit No, 76 decided on 3-5-1962 on the. Present suit.
2. ' To appreciate the significance of the last-mentioned issue, it may be mentioned here that during the pendency of the suit filed by Malik Amir Khan, Mistri Abdul Hamid had purchased another piece of land measuring 610 Sq. Ft. Out of the aforesaid Khasra Number from Karim Bakhsh etc. And that sale was also pre-empted by Malik Amir Khan on 19-9-1961 by filing a suit and during the pendency of the said suit, the first suit was stayed. The said suit, however, was dismissed by the learned Civil Judge on 3-5-1962 and the appeal preferred against the said decision was also dismissed by the District Judge. Thereafter, the first suit was revived pursuant to an application submitted on 19-7- 1963 and it was again taken up and decided on 19-4-1965.
3. ' The learned trial Court, in its order dated 19-4-1965, held that as a result of the decision pronounced in the second suit it was evident that the status of the vendee-defendant had improved and he could be regarded as a co-owner of the disputed Khata. Hence the plaintiff had no superior right of pre-emption. Consequently, the suit was dismissed on the ground that the defendant had improved his status after the institution of the suit. The plaintiff went up in appeal to the Court of the District Judge, which too, was dismissed by the learned Additional District Judge by his order, dated 16-6-1966.
4. ' Dissatisfied, Malik Amir Khan then filed a second appeal before the High Court. The learned Single Judge, hearing the said appeal, expressed the view that the vendee-respondent having improved his position during the pendency of the suit could not defeat the superior right of the plaintiff- appellant and in this connection relied upon on two judgments delivered by the Peshawar High Court in Abdul Majid Khan v. Shahzada Asif Jan and Muhammad Shuja and 4 others v. Sher Afzal Khan and others . He, therefore, accepted the appeal, set aside the judgment and decree of the learned Lower Courts and held that the plaintiff had a superior right as against the vendee. The case was sent back to the lower Court for disposing of the suit after giving its decision on the rest of the issues vide his judgment dated 11-10-1973.
5. Mistri Abdul Hamid, vendee, thereupon filed a petition for special leave to appeal in this Court.
6. Leave was granted on the grounds, firstly, 4 that the two earlier decisions of the Peshawar High Court in the cases of Abdul Majid Khan v. Shahzada Asif Jan and Muhammad Shuja and 4 others v.
7. Sher Afzal Khan and others were under appeal in this Court wherein leave had already been granted and secondly, the High Court had failed to notice that by a notification 'issued under subsection (2) of section 7 of the N.-W. F. P. Pre-emption Act of 1950 on the 16th August, 1972, the right of pre-emption was taken away with regard to the properties within the Municipal limits of the Peshawar City and this notification was made to apply to all suits and appeals pending on the date of the notification.
8. ' The appeal has now come up for final hearing. We observe that the appeals preferred against the decisions of the Peshawar High Court, which were relied upon in the impugned judgment of the High Court in this case have since been decided and the view taken therein has been upheld. See Abdul Majid etc. v. Shahzada Asif Jan etc. .
9. ' Thus, the only point which now survives for consideration is the second ground on which leave was granted, namely, as to the effect of the notification issued under subsection (2) of section 7 of the N.-W. F. P.
10. ' Pre-emption Act, 1950. Subsection (2) of section 7 is in the following terms :- "The Provincial Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre-emption shall exist."
11. ' The Secretary, Government of N.-W. F. P. In the Revenue Department, Peshawar, issued the following notification under this provision on 16-8-1972 :- `'Notification 16th August, 1972 No, 12704-7/M/79/Rev. V-In exercise of the powers conferred by subsection (2) of section 7 of N.-W.
12. F. P. Pre-emption Act, 1950 the Governor, N.-W. F. P. Is pleased to declare that no right of pre- emption shall exist in the Municipal Committee, Peshawar, from the date of issue of the said Notification. It shall also apply to all suits or appeals pending on, or instituted, after the issue of this Notification.
13. By order of the Governor, N.-W. F. P.
14. (Sd.)1 2 3 Secretary to Government of N.-W. F. P. Revenue Department Peshawar."
15. ' However, the abovementioned notification was itself rescinded by a further notification, dated 16- 12-1972. The said notification is in the following terms "Government of North-West Frontier Province Board of Revenue Notification 16-12-1972 ' No, 21948.-In exercise of the powers conferred by subsection (2) of section 7 of the North-West Frontier Pre-emption Act, 1950 (N.-W. F. P. Act No, XIV of 1950), the Board of Revenue is pleased to rescind with immediate effect of following Notifications --
(1) Government of North-West Frontier Province, Revenue Department Notification No, 12703/M/79/Rev. V, dated 16th August 1972, regarding exemption from pre-emption within the Municipal Limits of Peshawar.
16. (Sd,)
17. Secretary to Government of N.-W. F. P. Revenue Department Board of Revenue North-West Frontier Province."
18. ' Two questions arise, firstly whether the last-mentioned notification issued by the Board of Revenue can rescined a notification issued earlier by the Provincial Government and secondly, what is the effect of the rescision ? Namely, whether it would apply only to suits filed after its issuance on 16th December, 1972 or it has the effect of also reviving appeals or suits which came within the mischief of the first notification issued on 16th August, 1972 ?
19. ' We may mention that while scrutinising the two notification we observed that the notification of 16th August 1972 bore No, 12704-7/M/ 79/Rev. V-while in the notification, dated 16-12-1972, which purported to be rescinded to said notification, in terms stated that it was rescinding the Notification No, 12703/M/79/Rev, V, dated 16-8-1972 question arose whether the notification of the 16th December, 1972, in fact, rescinded the first mentioned notification dated 16-8-1972 ? We summoned the learned Advocate-General, N.-W. F. P. To assist us on this question and he informed us that the record of the department was thoroughly scrutinized which revealed that Nos, 12703 and 12704 were Numbers of the same notifications. In fact, the Number 12703 was allotted to the last copy of the notification, while the Number 12704 was given to those copies of the notification which had been endorsed for further action. Thus, the notification of the 15th December, 1972 was clearly issued with the purpose of rescinding the said notification. The appellants has not controverted this position.
20. ' As regards the other questions, namely, whether the notification dated 16-12-1972 issued by the Board of Revenue was also a notification of the Provincial Government so as to be able to rescind the notification earlier issued by the said Government ? The learned Advocate-General explained that initially under section 7 of the N.-W. F. P. Pre-emption Act, 1950, it was the Provincial Government who could declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sale no right of pre- emption exists. The Provincial Government was, however, subsequently substituted by the Board of Revenue with effect from 14-10-1955 by amending section 7(2) of the said Act by West Pakistan Act XVI of 1957, namely, the West Pakistan (Adaptation and Repeal of Laws) Act, 1951. He further pointed out that a Member Board of Revenue function to two different capacities-one as Secretary to Government, N.-W. F. P., Revenue Department and the other as Member, Board of Revenue. The perusal of the record showed that both the notifications were dealt with by the Member, Board of Revenue/Secretary to Government, N.-W. F. P., Revenue Department. Moreover, before the issuance of the notification, the approval of the Provincial Government was obtained. Therefore, he submitted that both the notifications were issued by valid authority. This position, too, was not challenged by the learned counsel for the appellant and we also consider that it is the correct position. Hence the only question, which requires consideration, is as to what was the effect on the appeal of Malik Amir Khan, pre-emptor, which was pending in the High Court on the issuance of the notification of 16-8-1972 under section 7(2) of the Act ? And whether the situation was effected by the subsequent notification of rescision issued on 16-12-1972 ?
21. ' The appeal filed by Malik Amir Khan was directed against the decision Of the learned District Judge, dated 16-6-1966 and remained pending in the High Court for over seven years and was ultimately disposed of by the High Court on 11-10-1973 i. e. At a point of time when the earlier notification, dated 16-8-1972 declaring that the right of pre-emption shall not exist within the limits of the Municipal Committee, Peshawar, which notification was also to apply to appeals on or instituted after the issuance of the said notification, dated 16-8-1972 stood rescinded by the subsequent notification issued on 16-12-1972.
22. ' The effect of the issuance of a notification, like the one issued under section 7(2) of the Act on 16- 8-1972, has been examined by this Court in the case of Mst. Bibi Jan and others v. Miss R. A. Monny and another and it has been held that its effect is also to non-suit the plaintiff who may have filed suits for pre-emption before the date of the notification besides debarring all pre-emptors from instituting suits to enforce their right of preemption in the area in question, subsequent to the date of the notification. Thus, the notification of 10th August, 1972 would have effected suits which were instituted even before the issuance of the said notification because the right of pre-emption possessed by the pre-emptors would be lost on the date of the issuance of the notification aforesaid and suits pending on the said date would be liable to dismissal.
23. ' The position would be the same, we consider in our opinion, in cases where suits filed by pre- emptor had been dismissed by the trial Court or the first appellate Court and their appeals were pending in the High Court with the result the such pre-emptors would lose the right of pre-emption and would not be able to prosecute and carry on their appeals for the reason that no right of pre- emption would inhere in the appellant when the Court will be called upon to adjudicate on their case.
24. ' In this case, however, when the High Court was called upon to adjudicate the point whether the right of pre-emption existed in favour of the pre-emptor, namely, on 11-10-1973 the pre-emptor did have such a right since the notification issued earlier taking away the right had, in the meanwhile, been rescinded.
25. ' The learned counsel for the appellant however attempted to argue that with the issuance of the notification of 16-8-1972 the appeal filed by the pre-emptor stood abated and the same, therefore, did not revive by the issuce of the subsequent notification, dated 16-12-1972.
26. ' A perusal of the notification of 16-8-1972 shows that hereinafter declaring that no right of preemptions shall exist in the municipal area limits of the Municipal Committee, Peshawar, from the date of issuance of the said notification, it does not proceed to declare that all suits or appeals pending on or instituted after the issuance of the said notification shall abate. It simply states that "it shall also apply to all suits or appeals pending on or instituted after the issuance of this notification". Thus to obtain benefit of the said notification it was necessary for the vendee to get the suit or appeal filed against him by a pre-emptor dismissed by obtaining an order of the Court wherein the said suit or appeal was pending. The notification did not have the effect of ipso facto dismissing a suit or an appeal pending on the date on which it was issued. The. Appellant, before us, therefore, should have applied to the High Court, where the appeal filed by the pre-emptor was pending, praying for the dismissal of the appeal on the ground that the appellant, no longer, had any right of pre-emption with regard to the property in dispute on account of the issuance of the' notification mentioned above. However, as such application was ever submitted nor any order to this effect passed by the High Court before the second notification of 16-12-1972 was issued, whereby the earlier notification taking away the said right was rescinded.
27. ' It needs to be pointed out that abstinent it has very serious consequences on a litigation and the said consequences are not to be lightly assessed unless the law-maker specifically and4 consciously enacts that such consequences should follow. Indeed, where the law-maker desires that such consequences should ensue this is provided for specifically see for instance President's Order (Post-Proclamation) No, I of 1958 - Laws (Continuance in Force) Order, 1958 wherein clause
(7) of Article 2 it is said :- "Article 2, clause (7).--- ' All orders and judgments made or given by the Supreme Court between the Proclamation and the promulgation of this order are hereby declared valid and binding on all Courts and authorities in Pakistan, but saving those orders and judgments no- writ or order for a writ issued or made after the proclamation shall have effect unless it is provided for by this Order, and all applications and proceedings in respect of any writ which is not so provided for shall abate forthwith. (Underlining is ours).
28. Again section 6 of the Service Tribunals Act, 1973 provides : Abatement of suits and other proceedings.- ' All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith."
29. [Underlining is ours] Since there is no indication either express or by implication that the suits and appeals pending on or instituted in the municipal area limits of the Municipal Committee, Peshawar after the issuance of the notification were to abate forthwith, the appeal filed by the pre-emptor in the instant case, which was pending in the High Court, could not be held to have abated merely on the issuance of the aforesaid notification.- It could have come to an end only if the vendee-defendant had obtained an order from the Court to the said effect during the period that the said notification was in force, namely, between 10-8-1972 upto 10-12-1972. This, however, was not done. Hence the High Court validly decide the appeal on the date that it eventually decided the appeal, namely, on 11-10- 1973.
30. ' The result is that this appeal must fail which is hereby dismissed accordingly. In view of the questions of law involved, which were of some complexity, there would be no order as to costs.
31. [Here in italics] PLD 1970 Pesh. 37 PLD 1970 Posh. 136 PLD 1982 SC 82 PLD 1961 SC 69