SHER BAHADUR KHAN, J.---Seventy-seven kanals one marla of land, situated in village Takel, Gadoon Area of Mardan District, was purchased by Mian Gul. The sale was pre-empted by Khaista Gal. The suit for pre-emption was brought on 4-9-1962 in the Court of Civil Judge, Swabi. It will be proper to mention the fact that before this Khaista Gul had preferred a claim under section 8 of the Frontier Crimes Regulation, in the Court of the Assistant Commissioner. Swabi, which was decreed and when the matter came up for confirmation of the Award before the Commissioner, the file was remanded with the direction that such a claim in respect of the area in dispute should be referred to the civil Court. It was thereafter that the suit was brought in the Court of Civil Judge, Swabi, as earlier stated.
2. The main issues with which we are concerned at present are.
(2) Whether the civil Court has no jurisdiction to try the-- suit The Court of first instance by its judgment and decree dated 11-12-62 came to the conclusion that the Law of Pre-emption applied to the Gadoon Area and that the civil Court had jurisdiction to try the suit. An appeal was taken to the Court of the learned District Judge, who by his judgment and decree dated 7-8-64. Reversed the judgment and decree of the Civil Judge and came to the conclusion that "as there is no evidence to show that the N.-W. F. P. Pre-emption Act or the Civil Procedure Code was ever extended to the area where the property in dispute is situated, the presumption under section 6 of the Order No. VII of 1953 would be that these laws did not apply."
2. The matter was taken in second appeal to this Court. Khan Faizullah Khan, J. As he then was, referred the case to a Division Bench and formulated the following question :- "Whether the Central Laws and the Provincial Laws including the: N.-W. F. P. Pre-emption Act, have been extended or deemed to have been extended to the former Gadoon Area, which has been added to Mardan District."
3. Thesimple question for determination 6 whether the N.-W. F. P. Pre-emption Act (XIV of 195") and the Civil Procedure Code (Act No. V of 1908) applied to the added area of Mardan District.
"No. F. 6(13)-F/52, 30th April 1953 (Gazette, 30th April 1953).--The order, is made by the Governor- General under section 290 of the Government of India Act, 1935.
Whereas the inhabitants of the area described in Schedule to this Order hereinafter called the added area, lying on the border of the Mardan District of the North-West Frontier Province, have made a unanimous request in writing through their accredited representatives that the added area he merge, with the North-West Frontier Province, hereinafter called the said Province; And whereas the Governor-General has been pleased to accept their petition to this effect: And whereas the Governor-General has ascertained the views of the Government of the said Province, which has agreed to the proposed merger subject to the terms and conditions as set out in this order: And whereas it is provided by section 290 of the Government of India Act. 1935, that the Governor- General may by order increase the area and alter the boundaries of any Province and also make such provision as he deems necessary for purposes incidential to such increase or alteration; Now, therefore, in exercise of the powers conferred by the aforesaid section and of all other powers enabling him in that behalf, the Governor General is pleased to make the following order: -
1. (1) This Order may be called The North-West Frontier Province (Increase of Area and Alt:-ration ofBoundary) Order, 1953.
(2) It shall come into force at once.
(2) On and from the day this Order I comes into force (hereinafter called the appointed day), the added area shall form part of the North-West Frontier Province, and the existing boundary of the said Province as described in Schedule B to this Order shall be so altered as to form the boundary described in Schedule C to this Order.
(3) On and from the appointed day the added area shall, for the purposes of administration, form part of the Mardan District.
(4) All expenditure connected with the administration of the added area shall on and from the appointed clay be a charge ors the revenue of the said Province.
Provided that any additional expenditure that may be incurred on account of the posting of Frontier Constabulary detachments into added area shall continue to be borne by the Central Government for such time as expenditure on the Frontier Constabulary generally continues to be borne by the Central Government.
(5) On and from the appointed day the public revenues of the added area shall be part of the public revenues of the North-West Frontier Province,
(6) (1) The Governor of the North-West Frontier Province shall, by order notified in the official Gazette, make such provision as appears to him necessary or expedient---
(a) for extending to the added area any law for the time being in force in the Province or any part thereof ; and
(b) for removing difficulties arising out of or in connection with the inclusion of the added area in the Province.
(2) An order under this paragraph may be made with retro--spective effect to any day nor earlier than the appointed day.
(3) Any order made under this paragraph may be controlled or superseded by an Act of the Provincial Legislature.
(4) Except as provided in sub-paragraphs (1) and (2) of this paragraph, no law in force in or in any part of the Province immediately before the appointed day shall extend or apply to the added area.
(See Paragraph 1)
Section S. No. Of Village Name of village Mansur 1 Qadra 3000 2 Seri-cum-Qadra 1125 3 Mirgal-cum-Qadra 1000 4 Badga 4375 5 Gajai 3750 6 Takel 6000 7 Kag Bani 4000 8 Besak 1500 9 Dewal 2000 10 Pola 0500 11 Kat Gram 1500 12 Gir Ro 0750 13 Dewalgarhi (Dewal Garhi bala)
1500 14 and Dewal Garhi Payan)
15 Sandoa 1000 16 Talal 0625 17 Noru Banda 18 Shingrai 2500 19 Gai Chatra 0500 20 1500 21 6000 22 Ulta 23 Sakelai 24 Satkatar 25 Malka Kadai 26 Dagai 1 Mazghund 600 2 Jaba 3 Learn 4 Punawal 5 375 6 Kolagar 7 Shenai 250 8 Bada 150 9 Mangal Chai 400 10 Dalori (Kuz Dalori and Bar Dalori 600 200 11 Sarkoi 1650 12 Gandaf 13 Dhero 14 Seri (Utmanzai but situated in Gandu).
200 Total 87375."
5. Later, by the Establishment of West Pakistan Act, 1955, the Governor's Provinces of the Punjab, the North-West Frontier and Sind, the Chief Commissioner's Province of Baluchistan and the Capital of the Federation, the States of Bahawalpur and Khairpur, and the Baluchistan States Union, the Tribal Areas of Baluchistan, the Punjab and the North-West Frontier and the States of Amb, Chitral, Dir and Swat (herein--after referred to as the "specified territories") were incorporated into the Province of West Pakistan. It is thus abundantly clear that the area where the property in dispute is situated became part of West Pakistan after the Establishment of West Pakistan Act, 1955 came into force.
6. The precise question raised by the learned counsel for the appellant was that under section 6(4) of the G. GA Order VII of 1953, "no law in force in or in any part of the Province immediately before the appointed day shall extend or apply to the added area", and that in this way it was established that the North-West Frontier Province Pre-emption Act (XIV of 1950) and the Civil Procedure Code (Act V of 1908) were not made applicable to the added area by any notification or gazette by the Governor of the Province. It will be necessary here to read section 6 of the G.- G.'s Order VII of 1953 reproduced above, with a view to appreciating the point raised.
7. It was conceded that no notification by the Governor under section 6 of G.- G.'s Order V1I of 19:13 extending the N.- W. F. P. Pre-emption (Act XIV of 1950) and the Civil Procedure Code (Act V of 1908) to the added area were issued. However, as regards the Civil Procedure Code the position taken was that the Central Laws (Statute Reform) Ordinance, 1960 extended the Central Acts or Ordinances, specified in the Second Schedule thereto, to the whole of Pakistan, and that the area where the property in dispute is situated was part of West Pakistan on coming into force of this Ordinance. It was, therefore, argued that among the enactments specified in the Second Schedule and so extended, is the Civil Procedure Code (Act V of 1908). A bare reading of the preamble to the Ordinance will make the matter clear. It reads--- "Whereas the incorporation of certain former Provinces, Acceding States and Tribal Areas into the Province of West Pakistan by the Establishment of West Pakistan Act, 1955, has rendered it expedient that certain changes should be made in the laws and that certain laws should be extended to parts of the new Province to which they had not extended before ; And whereas such extension has been agreed upon in consultation with the Provincial Government of West Pakistan and the other authorities concerned ; And whereas it is expedient to remove from the Statute--book certain Acts and Ordinances which have become obsolete or have discharged their function ; Now, therefore, in pursuance of the Proclamation of the seventh day of October 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance".
Section 3(1) of the Ordinance reads: "Save as otherwise expressly provided in any Central Act or Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated in the fourth column thereof, and shall be deemed to have been so extended and amended on the fourteenth day of October 1955.
8. The Civil Procedure Code is one of the Acts specified in the Second Schedule end it has been extended to the whole of Pakistan and the area where the land in dispute is situated was part of Pakistan on the day this Ordinance came into force, and therefore it is abundantly clear that the Civil Procedure Code is applicable to the added area of Martian District.
9. At the end, it was argued that under section 3 of Ordinance I of 1968 Civil Procedure (Special Provisions) Ordinance, 1968, the Civil Courts could adjudicate upon matters coming before the Court relating to the area mentioned in the First Schedule to the Ordinance only in accordance with the provisions of this Ordinance. In other words, it was argued that matters could no longer be decided under the provisions of the Civil Procedure Code in view of Ordinance I of 1968 in respect of the areas mentioned in the First Schedule. It is admitted that the added area of Mardan District and Hazara District specified in Schedule A to the North-West Frontier Province (Increase of Area and Alteration of Boundary) Order, 1953 (G.-G.'s Order VII of 1953) is mentioned as one of the area in the First Schedule to the Ordinance. However, the position is clear. Section 17 of the Ordinance in clear cut terms saves pending proceedings from the operation of the Order. This section says :- "Nothing in this Ordinance shall affect any proceedings relating to any dispute pending in or before any Court or other authority immediately before the commencement of this Ordinance, and such proceedings shall be continued and disposed of as if this Ordinance had not come into ; force."
This Ordinance I of 1968 is, therefore, not applicable to the pending cases. The case in hand was pending in the Court long before the Ordinance came into force.
10. We, therefore, in view of the above discussion, answer the question in the following manner: The N.-W. F. P. Pre-emption Act (XIV of 1950) has not ,g been extended to the former Gadoon Area which has been added to Mardan District by G.-G.'s Order VI: of 1953. The Civil Procedure Code (Act V of 1908), however, has been extended to this area.
11. This order will dispose of R. S. As. Nos. 363, 369, 370, 371, 372, 388 of 1964 and R. S. A. No. 549 of 1965, in which the question involved is whether the Civil Procedure Code applied to the added area of Mardan or not, and we hold that Civil Procedure Code (Act V of 1908) will govern these suits.