' RUSTAM S. SIDHWA, J.---This is an appeal by Muhammad Sharif son of Qasim Ali, appellant, against the order of a learned Single Judge of the Lahore High Court, dated 5-10-1988 accepting the First Appeal of Muhammad,: Sharif son of Maula Bux, respondent, and setting aside the order of a learned Additional District Judge of Gujranwala, dated 17-6-1984 and remanding the case to the trial Court with the direction to proceed with the same, after the respondent had made good the deficiency in court-fees within time to be specified by it.
2. The brief facts of the case are that the appellant filed a suit for possession through pre-emption relating to land measuring 65 Kanals, 1 Marla situated in Mauza Sadu Goraya, Tehsil and District Gujranwala, which was sold by Muhammad Hanif son of Qasim All vendor to the respondent on 24- 7-1973 for a sum of Rs,24,000. The appellant filed suit for pre-emption and asserted his superior right as co-sharer in Khata and Patti and also owner of the estate. The respondent filed written statement. The Trial Court framed eight issues arising out of the pleadings. All the issues relating to superior qualification were decided in favour of the appellant, but on Issue No,1 the plaint was rejected on 27-9-1982 on the ground that the suit was deficient in court-fees. The appeal was filed by the appellant, which was accepted by a learned Additional District Judge on 17-6-1984 and the learned Additional District Judge remanded the suit for disposal and directed the trial Court to determine the court-fees and to direct the appellant to make up the deficiency within time to be prescribed. The appeal was decided only on Issue No,1. This order of remand was challenged by the respondent in FA.O. No,115/84 which was decided by a learned Single Judge of the Lahore High Court on 5-10-1988, who held that the suit of the appellant had become infructuous on account of the remand order itself having lost efficacy, in view of the law laid down in Sardar All and others v.
Muhammad Ali and others PLD 1988 SC 287. Being' aggrieved by the said judgment, the appellant filed a petition before this Court for leave to appeal, which leave was granted to consider whether the suit could proceed on the basis of the appellant's claim on account of co-sharership in view of the decision of this Court in Ahmad v. Abdul Aziz PLD 1989 SC 771.
3. On behalf of the appellant it is submitted that in view of section 34(2) of the Punjab Pre-emption Act IX of 1991, his suit can proceed notwithstanding the repeal of the old Punjab Pre-emption Act I of 1913, and the proceedings will now be governed and continue in accordance with the provisions of the new Act.
4. On behalf of the respondent it is submitted that section 34(2) of the Punjab Pre-emption Act IX of 1991, does not apply to the instant case, as the said provision only applies to cases where a pre- emption judgment or decree has been passed in favour of the pre-emptor before 1-8-1986, as held in Sardar Ali's case (supra), and that section 35(1) of the said Act now applies, but in view of the fact that the appellant did not in his evidence lead any material to show that he was a co-sharer, his suit cannot succeed and the order of the learned Single Judge of the High Court should be maintained.
5. We have heard the arguments of the learned counsel for the appellant and the respondent and have perused the record. In order to understand the legal arguments raised, it is necessary to reproduce sections 34 and 35 of the Punjab Pre-emption Act IX of 1991, which I do so hereunder: "34. Repeal of Act I of 1913.- --(1) The Punjab Pre-emption Act, 1913 (I of 1913). Is hereby repealed.
(2) Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre-emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the 1st day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof.
35. Saving.--(1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive), in which the right of pre- emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made `Talb-i-Ishhad' in the presence of two truthful witnesses."
' At this stage it may be stated that the Punjab Pre-emption Act, I of 1913, was repealed on 29-3-1991 by the Punjab Pre-emption Ordinance V of 1990, which was followed by Punjab Ordinances XII of 1990 on 29-5-1990, XVIII of 1990 on 27-8-1990 and XXVII of 1990 on 26-11-1990, all bearing the same name, and finally the Punjab Pre-emption Act IX of 1991, on 31-3-1991. The old Punjab Pre-emption Act stood repealed as early as 29-3-1991.
6. Section 34(2) therefore applies to pre-emption cases and appeals---
(i) which were filed before 29-3-1990 i.e, under the old Punjab Preemption Act I of 1913;
(ii) in which judgments and decrees were passed before 1-8-1986; and
(iii) in which further proceedings are still pending on 31-3-1991, the date of the coming into force of the Punjab Pre-emption Act, IX of 1991.
It is clear from.The above that subsection (2) of section 34 applies to cases and I appeals filed under the old Punjab Pre-emption Act, 1913, in which judgments and decrees were passed before 1- 8-1986 and in which further proceedings are still pending on the date of the coming into force of the new Act, which proceedings can still be continued under the old Act notwithstanding its repeal.
7. Section 35(1) applies to pre-emption suits--
(i) which were instituted or pending between 1-8-1986 and 28-3-1990 (both days inclusive);
(ii) in which the right of pre-emption was claimed, as is available under the Punjab Pre-emption Act IX of 1991; and
(iii) in which decrees, judgments or orders were passed dismissing the suits before 31-3-1991, the coming into force of Act IX of 1991.
Subsection (1) of section 35 therefore applies to suits which were instituted or pending between 1- 8-1986 and 28-3-1990 (both days inclusive), in which the right of pre-emption was claimed, as is available under the new Act, in which. Decrees, judgments or orders dismissing the same were passed before 31-3-1991 and further proceedings are not pending, which dismissed suits, on an application made by the aggrieved person within sixty days of coming into force of the new Act, can, subject to subsection (2), be decided afresh according o the provisions of the new Act.
8. The words "judgments and decrees" in subsection (2) of section 34 are not qualified to imply judgments and decrees passed only in favour of the plaintiffs pre-emptors. The argument of the learned counsel for the respondent that this subsection applies to such judgments and decrees which have been passed in favour of the plaintiffs pre-emptors, in view of the decision of this Court in Sardar All's case (supra) cannot be accepted. This new provision of law overrides the rule laid down by a number of judgments of this Court. The words "judgments and decrees" thus cover both the cases i.e, those passed for or against the plaintiffs pre-emptors.
9. In the instant case, the suit was first rejected under Order VII, Rule 11(b), C.P.C. By virtue of the definition of the word "decree", contained in section 2(2) of the Code of Civil Procedure, the rejection of a plaint is a decree. The trial Court's order was therefore a decree. The appeal before the District Judge was therefore against a decree. In the instant case therefore judgments and decrees had been passed before 1-8-1986 and by virtue of the present appeal being pending, further proceedings relating to this case are thus, pending and can therefore under section 34(2) be "governed and continued in accordance with the provisions" of the repealed Act.
10. What is the effect of the evidence already recorded in the case in relation to the appellant's plea of being a co-sharer in the Khata, yet remains to be determined, as neither the Additional District Judge nor the learned Single Judge of the High Court have decided the same. This matter would therefore be open for decision at the appropriate level.
11. In view of the above, the order of the learned Single Judge of the Lahore High Court deserves to be set aside.
12. This appeal is therefore accepted, the judgment of the learned Single Judge of the Lahore High Court, dated 5-10-1988 is set aside and the respondent's appeal is remanded back to the High Court for decision afresh in accordance with law.
13. There shall be no order as to costs.