' The appellants Nos.1 and 2 and Bahawal, predecessor-in-interest of appellants Nos.3 and 4 through registered sale deed dated 3-6-1978 purchased land measuring 248 kanals 11 marlas situated in Mauza Fazal Wah, Tehsil and District Vehari, for a total consideration of Rs,2,79,000. The respondent filed a suit for possession through pre-emption. She claimed superior right on the ground of relationship and ownership in estate. The vendees resisted the suit. The learned trial Court accordingly framed issues, recorded evidence and after hearing the arguments proceeded to decree the suit vide judgment and decree dated 8-3-1982. The vendees impugned this judgment and decree through an appeal in the Court of District Judge, Vehari, who entrusted the appeal to one of his Addl: District Judges for disposal. The learned lower appellate Court held that the suit was filed beyond period of limitation and on this short ground accepted the appeal vide judgment and decree dated 9-7-1984. The plaintiff impugned this judgment and decree of the lower appellate Court through second appeal being R.SA. No, 152/84. The same was accepted by this Court on 19-4-1988, the finding on point of limitation were reversed and case was remanded to the lower appellate Court for determining other issues in accordance with the law.
2. The lower appellate Court this time dismissed the appeal vide judgment and decree dated 10- 10-1989 and this way it were the vendees, who have filed this second appeal in this Court. The appeal was admitted to regular hearing and notice was issued to the respondent, who has appeared through Mr. Iftikhar Ahmad Dar, Advocate and contested the appeal.
3. The learned counsel for the appellants in support of the appeal has argued that this Court had no jurisdiction to entertain R.SA. 152/84 and remand was also illegal as there was no decree in favour of the plaintiff on 19-4-1988. It is submitted that the case was fairly and squarely covered by the judgment in the case of Government of N.W.F.P. v. Said Kamal Shah (PLD 1986 SC 360). It is submitted that the Hon'ble Supreme Court has clearly held in C,P. No,1-R/88 that no decree can be passed after 31-7-1986.
4. On the other hand, the learned counsel for the respondent has argued that the suit of the respondent-plaintiff stood decreed on 8-3-1982 much before the target date and his client was well within his right to seek her remedy for restoration of the decree. The learned counsel in this behalf has referred to the judgment of Hon'ble Supreme Court in the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287). It is submitted that the acceptance of the appeal of the vendees did not wipe off the decree altogether and the same could be restored. In this behalf he has referred to questions Nos.6 and 7 in Sardar Ali's case and their replies. It is submitted that even in C.P.No,1R/88, the Hon'ble Supreme Court has reiterated its earlier view.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The admitted position on record is that the learned trial Court decreed the suit of the pre-emptor on 8-3-1982. However, appeal of the vendees against this judmgent and decree was accepted. The suit held time-barred and dismissed as such. The plaintiff filed R.SA. 152/84 in this Court for setting-aside of the judgment and decree of the lower appellate Court. The same was accepted and case remanded. The result was that on the one hand the appeal of the vendees before the lower appellate Court was revived and on the other hand, the decree of the trial Court restored. This was of course subject to the decision of lower appellate Court. The fate of this appeal hinges on the decision of question whether the plaintiff could press into service decree dated 8-3-1982 in her favour or that was a dead letter?
' In order to resolve the controversy guidance has to be sought from the judgment of Hon'ble Supreme Court in Sardar Ali's case. The learned counsel for the respondent has referred to questions Nos.6 and 7, therefore, it is worthwhile to reproduce the same as under:- "(6) Whether a plaintiff having obtained a decree for pre-emption in the trial forum lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986, and seek its restoration.
(7) Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision, will be entitled to seek its restoration regardless of the fact whether the matter is pending before the trial or any higher forum."
While replies to the same read as under:- "64. In the opening part of this judgment, we visualised the various questions vis-a-vis situations which have arisen or might arise in connection with the present controversy. In the light of the discussion and view on the points involved, the answers to Questions Nos.1 to 5 are in the negative, while Questions Nos.6 and 7 are answered in the affirmative. These questions and answers would, in our view, resolve most of the controversies. However, if there is a different question, or any new situation, arises in any particular case, the same would be resolved by the forum concerned in accordance with the principles discussed in this judgment and those underlying the questions posed and answers already rendered."
In my humble view the controversy in the present appeal is fully covered by question No,6. But Hon'ble Supreme Court has clearly conceived of the situation and held that the plaintiff can agitate for the restoration of the decree.
6. The moment R.S.A. No,152/84 was accepted the result was, as already noted, that the judgment and decree of the lower appellate Court was set aside and that of the trial Court automatically stood restored. The decree of the trial Court was confirmed by the learned lower appellate in the second round. The decree which the respondent plaintiff will press into service and execute is dated 8-3-1982, therefore, fully protected. The present controversy is covered by question No,6. This also furnishes complete reply to the argument of the appellants that proceedings in the earlier round in this Court were illegal. No other point was argued.
7. The result is that there is no merit in this appeal. The same is dismissed with costs.
Civil Miscellaneous No,2-C of 1990 ' The petitioners have moved this application under section 27 of the Punjab Pre-emption Ordinance V of 1990. It is submitted that since the value of the land in dispute has appreciated during the pendency of the litigation. It is, therefore, prayed that the prevalent market value of the land be got assessed and plaintiff directed to pay the same instead of the sale price.
2. On the other hand, the learned counsel for the respondent-plaintiff has submitted that this petition is absolutely misconceived because Ordinance of 1990 has no application to the cases filed and decided under Punjab Pre-emption Act, 1913. It is added that by virtue of section 6 of the General Clauses Act, 1897, the rights accrued and liability incurred are saved and will remain uneffected by repeal of law. The learned counsel in this behalf has referred to the judgments of Hon'ble Supreme Court in the cases of Idrees Ahmad and others v. Hartz Fida Ahmad Khan and 4 others ( PLD 1985 SC 376) and Imam Shah through Legal Heirs v. Muhammad Ullah Khan and others (1989 SCMR 1030).
3. I have given my anxious consideration to the arguments of the learned counsel for the parties.
The present Ordinance came into force with effect from 29-3-1990. The learned counsel for the petitioners has referred to Section 27, which reads as under:- "27. Determination of price.--(1) Where in the case of a sale, the parties are not agreed to the price at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid it shall fix the market value of the property as the price to be paid by the pre-emptor.
(2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor.
(3) If the price of the suit property on the date of decree has appreciated in comparison to its sale price as held by the Court the amount equal to the difference between the two prices shall be paid in addition to the price payable under subsection (1) or (2) as the case may be.
(4) The amount mentioned in subsection (3) shall be determined by each Court whether original or appellate passing a decree and the decree shall not be executed unless such amount is paid by pre-emptor."
The Ordinance has not been made applicable to the cases filed and decided under the old law.
The learned counsel for the petitioners submitted that as far as the Pre-emption Act of 1913 is concerned the same was not repealed but was declared by the Federal Shariat Court repugnant to Injunctions of Islam, therefore, the cases referred to by the learned counsel for the plaintiff are B irrelevant. The argument is without any merit because the whole of the Act was not struck down but it was only certain provisions, which were declared against Injunctions of Islam. The remaining part of the Act has been repealed by section 34 of the Ordinance V of 1990. The causes are to be decided in accordance with the law prevalent at the time of the institution until there is a clear provision to the contrary. The present Ordinance cannot be given retrospective effect in the absence of the provision to this effect. This way from whatever angle the proposition is looked at the petition is utterly misconceived.
4. The result is that the petition is dismissed as incompetent.
Appeal and .