FAZAL ILAHI KHAN, J.-In the following revision petitions the question involved is whether the suits for pre-emption instituted under the N.W.F.P Pre-emption Act,1950 (hereinafter called the repealed Act) in which no decrees were passed before 1.7.1986 have abated and were liable to be dismissed on the plaintiffs failure to make demand for pre-Emption as provided for under N.W.F.P. Act, 1987 (Act X of 1987):- 1. C.R.No.14 of 1988 Shah etc), (Mst. Lobia Jan etc v.Roghan
2. C.R.No.15 of 1988 Khan etc), (Mst. Libia Jan etc v. Younas
3. C.R.No.49 of 1988 (Awal Jan v. Noor Muhammad),
4. C.R.No.82 of 1988 (Shahzada v. Mohd Shafiq Javed)
5. C.R.No.560 of 1987 (Mst.Khufia Begum v. Purdil),
6. C.R.No.561 of 1987 (Msl.Khufia Begum v. Purdil),
7. C.R.No.562 of 1987 (Mst. Khufia Begum v. Purdil),
8. C.R.No.507 of 1987 etc. (Nasrullah Jan v. Haji Khana Mir
9. C.R.No.508 of 1987 etc) (Nasrullah Jan v. Haji Khana Mir
10. C.R.No.509 of 1987 etc) (Nasrullah Jan v. Haji Khana Mir
11. C.R.No.510 of 1987 etc.) (Nasrullah Jan v. Haji Khana Mir
12. C.R.No.511 of 1987 etc.) (Nasrullah Jan v. Haji Khana Mir
13. C.R.No.443 of 1987 S.Maqbool Shah). (Mst. Phool Begum etc. v.
It may be pointed out, that certain provisions of N.W.F.P. Pre-Emption Act,1950 came for consideration before their Lordships of the Supreme Court of Pakistan (Shariat Appellate Bench) in a case, Government of N.W.F.P. Through Secretary Law Department V.Malik Said Kamal Shah.
Reported inf P.L.D. 1986 S.C. Page 360L in which the leading judgment was delivered by his Lordship Muhammad Taqi Usmani J,with whom Pir Muhammad Karam Shah J. And Justice Muhammad Afzal Zullah, agreed, whereby these provisions of the N.W.F.P. Pre-emption Act were declared to be in conflict with the injunction of Islam. The concluding para No.105 of the judgment,for proper understanding, is reproduced below:- Space for Urdu The order of the Court, based on the majority view, reads as follows:- "We while agreeing with the reasoning in the judgment of Shafiur Rehman J, that the Federal Shariat Court had the jurisdiction to entertain, adjudicate and decide the petitions out of which these appeals had arison, order accordingly.
On merits,following the majority point of view, Appeals Nos.4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the foram last part of the judgment of Maulana Muhammad Taqi Usmani J. If possible a consolidated law of pre-emption be enacted accordingly till 31.7.1986.
There shall be no order as to costs."
The Government of N.W.F.P. In pursuance of the judgment of their Lordships referred to above framed a new law of pre-emption called''North West Frontier Province Pre-emption Act, 1987 which was passed by the Provincial Assembly on 21.4.1987 and published in the official gazette on28.4.1987. After it was assented to by the Government of the N.W.F.P. On 26.4.1987.
Relying on Section 13 read with Section 35 of the N.W.F.P. Preemption Act, '1987 the learned trial Judge dismissed suits bearing Nos. 575/1 of 1983, 259/1 of 1984, 182/1 of 1985, 59/1 of 1985, 61/1 of 1987, 60/1 of 1985, 418/1 Of 1986, 419/1 Of 1986, 420/1 of 1986, 421/1 of 1986, 422/1 Of 1986 and 421/1 of 1983, which are the subject matter of Civil Revisions at serial Nos.l to 12 mentioned above. These orders were challenged in appeals before the learned District Judge who relying on Article 264 of the Constitution of Islamic Republic of Pakistan. 1973 and law laid down in Muhammad Ishaq v. The State (P.L.D.1956 Pane 256). Karim Shah v. Mst.Zenat Bibi 195 Indian Cases P.304 (AIR 1941 Lahore 175 and Suuni Chand Davaram Jatwani v.(U Pakistan through the Ministry of Rehabilitation Karachi and
(2) The Rehabilitation Authority, Sukkur fP.L.D.1961 SC 5231 and several other reported judgments formed his view that pending cases instituted under the repealed law are not covered by section 13 and are saved by section 35 of the Act. Accordingly he accepted the appeals subject matter of C.R.
No.1 to 4, set aside the judgments and decrees of the trial Judge and remanded these cases for decisions on merits. In Civil revisions at serial No.5 to 12 the orders of dismissal of the plaintiffs suit wre upheld in appeals filed by the plaintill-pre-emptor against which the aforementioned revision petitions have been filed. C.R.No.443 of 1987 is directed against the order of the learned Civil Judge who rejected the vendee defendant's application for dismissal of the plaintiff pre-emptor' suit under the above provision of law.
2. In order to properly appreciate the contention of the learned counsel for the parties, I would like to reproduce the relevant sections of the new law as follows:-
6. Persons in whom the right of pre-emption vests.- The right of pre-emption shall vest:
(1) firstly in Shafi-sharik;
(2) secondly in shafi Khalit; and
(3) thirdly in shafi-jar.
Explanations: i) "Shafi Sharik" means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons. ii) "Shafi Khalil" means a participator in the special rights attached to the immovable property sold, such as right of passage of water or right of irrigation. iii) "Shafi-Jar" means a person who has a right of preemption because of owing an immovable property adjacent to the immovable property sold.
13. Demand of Pre-emption:-
(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:
(a) talb-i-Muwathibat;
(b) talb-i-ishhad; and
(c) laib-i-Khusumat.
Explanations:i. "Talb-i-muwathibal" means immediate demand by a pre-emplor in the silling or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption, Note: Any words indicative of intention to exercise the right of pre-emption are sufficient.ii. "Talb-i- ishhad" means demand by establishing evidence. iii. "Talb-i-Khusumat" means demand by filing a suit.
(2) when the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make talb-i-Muwathibat.
(3) Where a pre-emptor has made talb-e-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than to weeks from the date of notice under section 34 or knowledge, whichever may be earlier, make talb-i-ishhad by sending a notice in writing attested by to truthful witnesses, under the registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption.
Provided that in areas where due to lack of post office facilities it is not possible for the pre- emptor to give registered notice, of to truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under sub-section
(2) and talb-i-ishhad under sub-section(3), he shall make talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.
35. Repeal:-
(1) The North West Frontier Province Pre-emption Act, 1950 (N.W.F.P.Act XIV of 1950), is hereby repealed.
(2) In the cases and appeals filed under the law referred to in sub-section (1) in which Judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in ,sub-section (1) and which immediately before tb'e commencement of this Act were pending before a Court shall lapse and suits of the pre- emptor shall stand dismissed, except those in which' right of pre-emption is claimed under the provisions of this Act.
Admittedly Section 35 of the Act deals with the pending cases and appeals filed under the repealed law, however, it has drawn a distinction in cases in which decrees have been passed before the enforcement of the new law, or for the purpose of the present controversy before 1.7.1987, and those cases which were pending before the trial Court on 1.7.1987 and in which decrees were not yet passed. In the former cases further proceedings were to be taken under the repealed law while the latter cases are to lapse and suits of the pre-emptor are to be dismissed except those in which right of preemption is claimed under the provisions of this Act.
3. The learned counsel for the plaintiff pre-emptor referred to Section 6 of the Act and contended that right of pre-emption claimed in the suits being available to them under section 6 of the Act the judgments and orders of the learned Courts below dismissing the plaintiff pre-emptor' suit being illegal were liable to be set aside.
On the other hand, It was argued by the learned counsel for the defendant-vendees that undoubtedly Section 6 of the Act enumerates those persons in whom the right of pre-emption vests in preference to the defendant-vendees in order of their respective merits but these rights stood extinguished- on the plaintiffs failure to demand pre-emption within the meaning of Section 13 of the Act. Vesting of a right in a person and extinguishment of such right in absence of compliance with the provision of section 13 are co-relative and if read together disentitles a plaintiff-pre- emptor to the decree. In other words, the right of pre-emption vested in a pre-emptor under section 6 stood extinguished by section 13 hence no benefit can be claimed of the saving clause under Section 35 of the Act.
1. After hearing the learned counsel for both the parties I find no merit in the revision petitions filed by the plaintiff-pre-emptor in view of the judgment of the Supreme Court of Pakistan eited above.
No doubt Section 35 saves those pending suits from abatement and dismissal in which right of pre-emption is claimed under the provisions of new law but the provisions referred to above are not to be restricted to a right of pre-emption provided for in Section 6 of the Act alone but is to be read with Section 13 which extinguishes such existing right when no demand for pre-emption is made as provided therein. The contention of the learned counsel that it cannot be visualised that before the judgment in Government of N.W.F. V. Muhammad Said Kamal Shah., the plaintiff would have made demand for pre-emption and would have complied with the provision of Section 13.
That the provision of Section 13 having been held to be substantive in nature and not procedure in the said judgment its retrospective operation is against the constitutional provision. There.Is no force in the contentions as these questions have been fully dealt with and answered in the judgments Sher Muhammad vAllah Pitta fP.L.D.1988 SC Page 412') and Ghulam Qadir v. Nawab Din (T.L.D.1988 SC Page 701.
In this view of the matter revision petitions 1 to 4 (Nos. 14,15,49 and 82 of 1988) against the order of remand are accepted, the judgment and order of the District Judge, Passed in appeals are set aside and those of the trial Court dismissing the plaintiff pre-emptor suits are restored. Revision Petitions 5 to 12 (Nos.560,561.562,507,508,509,510,511 of 1987) are accordingly dismissed. Similarly C.R. No.443 of 1987 is accepted and the defendant petitioner's application for dismissal of the plaintiff-respondent's suit is allowed. In consequence thereof the plaintiff-respondent's suit also stands dismissed.