Faizullah plaintiff-petitioner has challenged the judgment and decree dated 1-3-1989 of the learned District Judge, D.I. Khan whereby his appeal against the judgment and decree dated 17-1- 1989 of the Senior Civil Judge, D.I.Khan dismissing his suit was dismissed.
2. The plaintiff-petitioner had pre-emoted the suit property on the basis of the qualifications enumerated in section 12 of the N.W.F.P Pre-emotion Act, 1950 (since repealed). During the pendency of the suit the vendee-defendant moved an application for the dismissal of the suit of the pre-emptor-petitioner on the basis of the authorities of the august Supreme Court reported as Government of N.W.F.P. v. Said Kama Shah (PLD 1986 SC 360) and Sardar Ali v. Muhammad Ali (PLD 1988 SC 287). The august Supreme Court in aforesaid reported cases held that where no decree had been passed in favour of pre--emptor at any stage before 31st July, 1986 no decree could be passed after the said date i.e. 31-7-1986 in his favour on any ground ---co-ownership, contiguity etc. On the basis of these pronouncements of the august Supreme Court the learned trial Courts non-suited the pre-emptors. His appeal too was dismissed, obliging the plaintiff-petitioner to come to this Court in the civil revision petition.
3. In the presence of the aforesaid case-law coupled with the observations-- of, the august Supreme Court in Haji Abdul Hakim and others v. Additional District Judge, Peshawar and others (1989 SCMR 946) I do not see any exception to the conclusions arrived at by the trial/appellate Courts because the verdict of the august Supreme Court had the binding effect as it held the ground then. It is, however, disquieting to note that the subordinate Courts in flagrant violation of the mandatory provisions of rule 5 of Order XX C.P.C got rid of the cases on the question of "Talabs" only, non-suiting the pre-emptors and leaving all the other issues undetermined. Similarly I, have noticed with dismay that the learned District Judge, D.I.Khan with a view apparently to show better out turn dismissed almost all the appeals in limine having least regard to the mandatory requirements of Order XLI rule 11 C.P:C which empowers the appellate Courts to dismiss the appeal after sending for the record. Notwithstanding the said requirement of law, the superior Courts have disapproved the dismissal of first appeal in limine. In this connection I can do no better than to borrow the following observations of the august Supreme Court in Humayun Zulfiqar Ismail v.
Hamid Saadat Ali (1968 SCM R 828):-- "Generally in appeal from an original decree, the appeal is both on facts and law but in an appeal from an appellate decree or order, the appeal is on the grounds of law only. In an original appeal or what is more commonly called a first appeal, the first appellate Court is the final Court of facts.
Dismissal under Order XLI, rule 11, C.P.C. Of a First Appeal is, therefore, not the general rule." Supreme Court has reviewed the situation and in para 21 of the said judgment has held that: "One thing that stands out in the Scheme of Chapter 3-A of Part VII of the Constitution is that the Court has been given the power of applying the test of repugnancy, of giving a prospective declaration of repugnancy and of striking down prospectively a provision of the law under challenge or under examination. The Court has not been given any power whatsoever to legislate, to engraft its observations; findings, or declarations on the law not held to be repugnant, and otherwise allowed to hold the field. The Talabs, even if sine qua non for advancing successfully every claim based on Islamic law of Pre-emption, cannot be imported or engrafted into the left over statutory provisions of Pre-emption Law not challenged, not examined and allowed for the time being to remain intact."
5. Respectfully following the reviewed dictum of the august Supreme Court reproduced above I hold that the question of "Talabs" had neither been challenged nor examined in the reported case of Said Kamal, and therefore, it could not be imported or engrafted into the left over statutory provisions of the Pre-emption Law. The dismissal of the suits of the pre-emptors on that score was therefore, not warranted by law. When decision in Said Kamal's case which was quoted as a precedent for the subsequent reported cases, was pronounced, the N.W.F.P. Pre-emption Act, 1987 had not come into force. On the other hand, in the N: W.F.P. Pre-emption Act, 1950, which held the field the question of `Talabs' was not even contemplated.
6. Learned counsel for the vendee-respondent however, contended that the suit out of which this revision petition has arisen was instituted after the promulgation of N: W.F.P. Pre-emption Act, 1987 and, therefore, the want of `Talabs' as envisaged by section 13 thereof warranted dismissal of the suit on that score as well. Learned counsel for the petitioner-pre-emptor on the other hand urged that the sale transaction which has been pre-empted had taken place prior to the promulgation of the N.W.F.P. Pre-emption Act, 1987 and, therefore, the question of `Talabs' did not arise because by that time the Act had not been enforced.
7. In this case the plaintiff-petitioner was non-suited on the basis of the authorities of the august Supreme Court referred to above and the view expressed has since been reviewed by the august Supreme Court in the above-referred judgments. In the case-in-hand the limited question whether in the light of the reviewed verdict the suit of the plaintiff-pre-emptor had been correctly dismissed has been answered in para 10 above. The exact effect of coming into force the N.-W.F.P. Pre- emption Act, 1987 in the instant case is not a moot point before me because the learned trial Judge has not decided the matter on that score. This question is left to the trial Court to adjudicate thereon after recording evidence and affording full opportunity to both the parties to raise their respective contentions at the appropriate stage.
8. Resultantly, I would accept this Civil revision petition and setting aside the judgments and decrees of the two Courts below, remand the case to the trial Court for its decision on merits in accordance with law. The parties are directed to appear in the trial Courts on 12-12-1989. No order as to costs.