The petitioner Arif A.I has moved this Constitutional petition praying therein that the impugned orders dated 27-9-1987 and 27-10-1987 passed by learned Civil Judge and the learned Additional District Judge, Gujranwala, respectively may be declared without lawful authority and of no legal consequence. Briefly the facts of the case arc that respondent No. 1/plaintiff Muhammad Khan filed a suit for possession through pre-emption on 1-9-1986 against the present petitioner on the ground that he has superior right of pre---emption vide copy of plaint, Annexure A. The petitioner moved an application under Order VII, Rule 11, C.P.C. For the rejection of the plaint of respondent No. 1 on the basis bf the rule laid down by the Honourable Supreme Court in Government of N. W. F. P.
Through Secretary Law Deptt. v. Malik Said Kamal Shah PLD 1986 SC 360. However, the learned Civil Judge proceeded to reject the application on 27-9-1987 vide Annexure D on the ground that the law laid down by the Honourable Supreme Court became effective on 31-7-1986 whereas the sale in question took place on 16-9-1985 and as such the respondent/plaintiff had the cause of action before the judgment referred to above was announced. It was further held that the judgment of the Hon'ble Supreme Court was not retrospective in effect and that the suit could be filed in accordance with old law of limitation. The learned Appellate Court vide its order dated 27-10-1987 dismissed the appeal of the petitioner and affirmed the findings given by the learned trial Court.
2. Learned counsel for the petitioner has forcefully submitted that in view of the law laid down by the Honourable Supreme Court in Malik Said Kamal's case (PLD 1986 SC 360), no decree for pre- emption can be passed after 31-7-1986. It is maintained that section 30 under which period of limitation for filing a pre-emption suit is one year, has been declared against the injunctions of Islam. Learned counsel has placed heavy reliance on Sher Muhammad v. Allah Ditta (PLD 1988 SC 412), Muhammad Shoaib v. Member (Revenue) etc. (PLD 1988 SC 355) and Sardar A.I v. Muhammad A.I (PLI) 1988 SC 287). On the basis of these authorities the learned counsel argued that it is consistently held by the Hon'ble Supreme Court that after 31-7-1986 no decree whatsoever can be passed in favour of the pre-emptor on any grounds, co-ownership, contiguity etc.
3. Learned counsel for the respondent defending the orders of the learned Courts below submitted that the judgments, referred to above are not applicable to the facts and circumstances of the instant case.
4. I have heard the learned counsel for the parties and have perused the record. In my considered view, the authorities, referred to above, apply with full force to the facts and circumstances of the case in hand. In Government of N. --W. F. P. Through Secretary Law Department v. Malik Said Kamal (PLD 1986 SC 360) it was clearly held that section 30 of the Pre-emption Act, 1913 is repugnant to the injunctions of Islam and that a suit for pre-emption can be filed within a reasonable time. It is, therefore, clear that the provisions contained in section 30 of the Pre-emption Act were declared un-niamic and exactly was the same post--petition even on the date when the cause of action to file the pre-emption suit arose to the respondent/plaintiff. The admitted position in the case is that sale of the land in question was effected through registered sale-deed dated 6-9-1985 and that the suit in question was instituted on 1-9-1986 and as such by that time the law declared by the Honourable Supreme Court definitely held the field. After hearing the learned counsel for the parties and carefully going through the above---referred authorities, I am of the view that the respondent /plaintiff could file his suit for pre-emption within a reasonable time and definitely not within 1 year. As, observed earlier the cause of action arose to the respondent to file the pre--- emption suit on the date when the registered sale-deed was executed i.e. 16-9--1985 and that the suit was filed as late as 1-9-1986. Thus it cannot be said that the suit was filed within reasonable period. The view of the learned trial Court that the period of limitation in the case in hand shall be the same as provided by the old section 30 of the Punjab Pre-emption Act 1913 is wholly misconceived in law. From the pleadings of the parties it is clear that the respondent /plaintiff filed the suit for pre-emption on 1-9-1986. The learned Courts below have wholly failed to show as to how the old law of limitation shall apply to this case. The relevant provisions pertaining to the limitation already stood declared repugnant 'to Islamic injunctions on 31-7-1986. This being so from 31-7-1986 onward the period of limitation far filing pre-emption suits cannot be one year and that as per the law laid down by the Hon'ble Supreme Court, the suits are to be fled within the reasonable time. In my view the suit in hand has not at all been filed within reasonable period of time. From the record it is clear that the suit has been filed after the expiry of 11 months and 15 days from the accrual of the cause of action to the respondent. Thus the suit is definitely hit by the law laid down by the Honourable Supreme Court, referred to above. There was no legal justification with the Courts below not to reject the plaint under Order VII, Rule 11, C.P.C.
5. The upshot of the above discussion is that respectfully following the rut laid down in the above- referred authorities of the Honourable Supreme Court, I proceed to set aside the impugned orders dated 27-9-1987 and 27-10-1987 paste by the learned Courts below and to reject the plaint of the respondent /plaintiff under Order VII, Rule 11, C.P.C. In the result, this petition succeeds and is allowed leaving the parties to bear their own costs.