' SHAFIUR RAHMAN, J.--Leave to appeal was granted to examine the effect of the amendments introduced by Ordinance No,XIII of 1983 Muslim Pesonal Law (Shariat) Application Act the Punjab (Amendment) Ordinance, 1983 on the pending litigation between the parties.
2. The facts leading to the appeal are that Dilawar Hussain and Nazir Hussain the two brothers were owners of land in village Nangal, Tehsil Onna, District Hoshiarpur. On 1-7-1941 the two brothers sold 35 kanals 4-1/2 marlas of land alongwith proportionate share in the Shamlat Deh in favour of Yousaf, the predecessor-in-interest of the appellants. A civil suit was instituted by Bahadur son of the vendor Nazir Hussain claiming that the property sold by Nazir Hussain was ancestral, that the sale was not for legal necessity and did not affect his reversionary rights. The suit was decreed on 9-12-1946. It is said that an appeal filed by the predecessor-in-interest of the present appellants was still pending when partition took place and Yousaf migrated to Pakistan. He received allotment in lieu of land purchased by him and abandoned. He got allotment in Chak No,336/J.B., Tehsil Toba Tek Singh. In 1957, an application was moved by the respondent Bahadur Hussain to assert his right over this allotment on the basis of the declaratory decree earlier obtained by him in India. The Additional Rehabilitation Commissioner (Touring and Inspection) vide his order dated 23-11-1957 cancelled the allotment and this cancellation of the allotment was maintained in Revision by the Settlement Commissioner to the extent of half the share of Nazir Hussain over which the claim of the respondent Bahadur Hussain extended. In consequence the sucessors-in-interest of Yousaf filed a Constitution Petition (Writ Petition No,395/R of 1959) and succeeded inasmuch as Bahad was held entitled to no relief as long as his father the alienor was alive. They operative part of the judgment given in the Constitution Petition was as hereunder:-- "The order which I propose to pass therefore is to declare the order passed by the Additional Rehabilitation Commissioner (Touring and Inspection) and that of the Rehabilitation Commissioner as being in excess of their jurisdiction, for the reason that the decree, on which they are founded shows nothing which they propose to give to respondent No,2. The Rehabilitation Commissioner is, therefore, directed to modify the order on the lines suggested, that in the lifetime of the alienor, for it is not disputed that the alienor is still alive, the petitioners will continue as owners under the sale- deed executed in their favour, but it will be subject to burden of the decree in favour of respondent No,2, who will be entitled to secure possession by filing a suit for possession, within three years of the demise of the alienor, as required by law. The petition is allowed on these lines and there will be no order as to costs."
3. On 1-1-1970 Nazir Hussain, the father of the respondent Bahadur died. He thereupon instituted a civil suit claiming joint possession over the land allotted to Yousaf the predecessor-in-interest of the appellants. The suit was contested but decreed by the trial Court on 23-10-1973. The first appeal before the Additional District Judge and the Regular Second Appeal before the High Court failed.
While the petition for leave to appeal was pending, Ordinance No,XIII of 1983 came to be promulgated and for determining its effect on the pending litigation between the parties, leave to appeal was granted.
4. This appeal was fixed for hearing on 3-5-1989 before a Bench of three learned Judges of this Court. It was taken up before a Bench of two learned Judges on the same day i.e, 3-5-1989 and the following order was passed:- "Neither any of the appellants nor their counsel has cared to attend. The appeal is therefore dismissed for non-prosecution with costs."
5. On the 6th of January, 1990, an application was filed under Order XV, Rule 5 of the Supreme Court Rules, 1980 for restoration of the appeal and the following reason was given for the apparent default on the part of the learned counsel for the appellants: "That Mr. Masood Javid, counsel for the appellants went from Lahore to Rawalpindi to prosecute this appeal as well as another Appeal No,341/85 (Shamim Akhtar v. Muhammad Rashid) fixed on the same day before Hon'ble Bench I. He appeared before Bench I and learnt there that due to the sad demise of a near relative of Mr. Justice Dr. Nasim Hasan Shah, the Bench of his Lordship will not function. On this information he remained present in the Court room of Bench I and after conducting his case before that Bench came back."
6. There is also an application for condonation of delay in moving the application for restoration of the appeal, which has been explained in the following words:- "That the appellants learnt about the dismissal of the appeal on 31-12-1989 when the respondent came to take possession of the land in dispute. The appellants then applied for a certified copy of the order on 2-1-1990 and got it on 4-1-1990."
' The application for restoration of appeal has been resisted on the ground that it is inordinately delayed and that it does not disclose sufficient cause justifying restoration.
8. After hearing the learned counsel for the parties we find that in fact there was room for a misunderstanding of the sort as has been claimed by the learned counsel for the appellants and also the want of knowledge of the dismissal of the appeal for non-prosecution. In the circumstances, we condone the delay and restore the appeal.
9. On the merits of the case, we find that following the decision of the Federal Shariat Court in Muhammad Ishaq v. Federation of Pakistan PLD 1981 Federal Shariat Court 278 which was upheld by the Shatiat Appellate Bench of the Supreme Court in the Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaque and another (PLD 1983 SC 273)-- Shariat Bench), Ordinance No,XIII of 1983 was promulgated. The provision relevant to the case is section 2-A which is reproduced hereunder:-- "Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat) Act;
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: ' Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decree."
10. Clause (b) of amended section 2-A of Ordinance No,XIII of 1983 clearly affected the claim of the respondent and the decree held by Bahadur has been rendered void and inexecutable and of no legal effect. In view of this provision of the law, this appeal must succeed and the claim of the respondent must fail.
11. The appeal is allowed; the judgments of all the three Courts are set aside and the suit filed by the respondent for joint possession is dismissed. Parties are left to bear their own costs as the failure of the respondent is on account of the change in the law after the three Courts had given decision on the question.