' The applicants/defendants seek review of judgment dated 6-31991 passed in W.P. No,1685 of 1990 whereby the judgment and decree dated 21-7-1990 passed by the learned lower appellate Court for setting aside the consent decree passed by the learned trial Court dated 17-5-1990 for preemption in the suit filed by the respondent.
2. The sale which was sought to be pre-empted by the respondent was made on 5-1-1989 and the suit was instituted on 12-4-1989. The right of preemption was claimed on the grounds that the plaintiff was co-sharer in the Khata and that the land owned by him was contiguous to the land sought to be pre-empted. During the pendency of this suit Punjab Pre-emption Ordinance No,XVIII of 1990 was promulgated which was enforced w,e,f. 29-3-1990. It was provided in section 36 of this Ordinance that any suit instituted after 31-71986 in which right of pre-emption was claimed on any of the grounds as was available under the said Ordinance which suit if pending or dismissed shall be decided in accordance with the provisions of the said Ordinance. The applicants conceded right of pre-emption of the respondent as claimed in the suit on 17-5-1990 on which date the said Ordinance had come into force and the trial Court passed a consent decree on the same date.
This decree was cahallenged by the applicants by filing appeal before the learned lower appellate Court which was accepted on the sole ground that the suit could not have been decreed after 31- 7-1986 obviously relying upon the rule laid down in judgment reported as Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) as interpreted by the Supreme Court. The writ petition filed by the respondent/plaintiff was accepted by this Court through judgment dated 6-3-1991 through which the judgment passed by the learned lower appellate Court was set aside and the consent decree passed in favour of the respondent by the learned trial Court was restored. The applicants seek review of this judgment.
3. Learned counsel for the applicants when confronted with the situation that since the right of pre- emption was claimed on the grounds as was available under Ordinance 28 of 1990 as such, the suit was maintainable and could be decreed by virtue of section 36 of the said Ordinance, argued that the sale which was pre-empted was made on 5-1-1989 on which date there was no law conferring right of pre-emption on the basis of Injunctions of Islam, therefore, the condition that the pre- emptor in order to succeed in a pre-emption suit has to establish that he had right of pre-emption on the date of sale was not satisfied, as such, the suit could not have been decreed.
4. The declaration regarding repugnancy of Punjab Pre-emption Act to the Injunctions of Islam became effective from 1-8-1986 from which date up to 29-3-1990 there was not law of pre- emption in force in the Punjab Province. Punjab Pre-emption Ordinance No,28 of 1990 was promulgated which came into force w,e,f. 29-3-1990 conferring right of pre-emption on the grounds recognised by Injunctions of Islam. Section 36 of this Ordinance provided that any suit which was instituted after 31-7-1986 and was still pending or had been dismissed was to be decided in accordance with the provisions of the said Ordinance if in such a suit right of pre- emption was claimed on any of the grounds as was available under the said Ordinance. The legal effect of this provision of the said Ordinance was that the right of pre- A emption on the grounds recognised by Injunctions of Islam was deemed to have been conferred in respect of sale made after 31-7-1986 and if in any suit filed after the said date the right of pre-emption qua the sale made after 31-7- 1986 was claimed on any of the grounds available under the Ordinance the same was to be decided in accordance with the provisions of the said Ordinance, meaning thereby that the right of pre-emption shall be deemed to have been conferred from the date of such sale. This being so, it cannot be argued that in such a suit which was covered by section 36 of the Ordinance, the plaintiff could be held to have no right of pre-emption on the date of sale made before the promulgation of the said Ordinance. The provisions of the said Ordinance to this extent were given retrospective effect.
5. Learned counsel for the applicants did not dispute the correctness of 1 the fact that in the suit filed by the respondent the right of pre-emption was claimed on such ground as was available under the said Ordinance, therefore, the said suit was covered by the provisions of section 36 and the consent decree passed in such a suit by the learned trial Court did not suffer from any illegality or jurisdictional defect.
6. Faced with this situation learned counsel for the applicants attempted to argue that the requirements of Talabs as envisaged under the provisions of the said Ordinance were not satisfied and the matter of Talabs being substantial part of right of pre-emption, no right of pre-emption could be held to have existed in favour of the plaintiff. The argument has not impressed me. Once the applicants conceded right of pre-emption of the respondent/plaintiff and got a consent decree passed they would be deemed to have conceded right of pre-emption as was enforceable in all its bearing including fulfilment of requirements of Talabs. This is apart from the fact that no such averment has C been made in the review application to the effect.
7. For the foregoing reasons this review application has no merits which is hereby dismissed in limine.
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