1. ' Writ petition arises out of civil suit for pre-emption instituted on 10-3-1990, in respect of a sale of land measuring 3 'Kanals, 8 Marlas at village Mullan Mansoor in Tehsil Attock by Mst. Fazal Jan, Mst.
2. Bibi Khatoon and Mst. Bibi Humaira in favour of the respondents for a sum of Rs,86,000 through Mutation No,721 sanctioned on 19-12-1989. Superior right of pre-emption was asserted on the ground of co-ownership. Pre-emption suit was dismissed on 28-7-1990 by the trial Court. It was held that in view of the judgment of Shariat Appellate Bench of the Supreme Court reported in PLD 1990 SC 865, preemption suit could not proceed for a decree in favour of the pre-emptoRs, They submitted an application to the trial Court on 18-5-1991 for setting aside of the dismissal of the suit and its revival for trial on merits. The respondents contested the application. On 27-1-1992, the trial Court dismissed the application for revival of the suit. It was found that the petitioners had not made Talb-i-Ishhad, as required in the Punjab Pre-emption Act, 1991. From the decision of the trial Court dismissing the application for revival of the preemption suit, petitioners preferred a revision before learned District Judge, Attock, which failed on 5-3-1992. The conclusion culminating in dismissal is found in para. 2 of the order passed by the learned District Judge. It reads "before me it is not denied that no notice under section 13(3) of the said Act under registered cover has been sent. It is argued that the service of notice is not fatal in the case. On the authority of the law reported as PLD 1964 SC 536 I am sorry, I cannot agree with the argument made." It is this order that is assailed in the petition filed under Article 199 of the Constitution at the instance of the petitioneRs, ' It is contended that the view of the Courts below was erroneous inasmuch as the petitioners in para. 2(B-e) of the plaint in the preemption suit has specifically pleaded performance of Talb-i- Muwathibat and Talb-i-Ishhad for claiming pre-emption. Therefore, the application for revival of the pre-emption suit for its decision on merits faithfully met with the requirements in section 35 of Punjab Pre-emption Act, 1991.
3. ' Upon hearing the learned counsel and review of existing record, interference with the impugned orders was not required, though for reasons different from t lose prevailing in the Courts below. Sale of the land took place on 19-12-1989. The pre-emption suit was instituted on 10-3-1990. In Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 Supreme Court 360, it was found that the enumeration of various category of pre-emptors in section 15 of Punjab Pre-emption. Act 1913, except that of a co-owner was un-Islamic and performance of Talbs was an essential part of pre-emption under Islamic Law. The decision in the aforesaid case took effect from 1-8-1986. In case of Sardar Ali and others v. Muhammad All and others PLD 1988 Supreme Court 287, it was found that except for the decrees already passed in the pre-emption suits on or before 31-7-1986, target date fixed in the case of Malik Said Kamal Sh h, no fresh decree upon the preferences expressed in the Punjab Pre-emption Act could be passed by any Court. Still later, the Supreme Court found that the Punjab Pre-emption Act, 1913, was rendered obsolete and was unworkable and except for the decrees already made before the above target date, no fresh decree under it could be passed on any ground whatsoever. From 31-7-1986 to 28th March, 1990, the legislature did not step in to fill the vacuum. On 29th March 1990, the Governor of the Punjab promulgated the Punjab Pre-emption Ordinance, 1990 (Ordinance V of 1990). In section 34 of the Ordinance, it repealed the Punjab Pre-emption Act, 1913. Incidentally, this Ordinance did not provide for "saving" as was subsequently done. Ordinance V of 1990 lapsed. It was followed by Punjab Pre-emption Ordinance, 1990 (Ordinance XII of 1990) on 29th May, 1990. Its attern was mostly similar to that of its predecessor. Ordinance XII of 1990 also lapsed. Thereupon, Punjab Preemption Ordinance, 1990 (Ordinance XVIII of 1990) was promulgated on 27th August, 1990. It provided for a "saving" in its section 36. This Ordinance also lapsed and was followed by another Ordinance of the same nomenclature as Ordinance XVII of 1990 on 26th November, 1990. Upon lapse of this Ordinance, Punjab Pre-emption Ordinance, 1991 (Ordinance IX of 1991) occupied the field on 25th February, 1991, which was subsequently passed into an Act of the appropriate legislature as Punjab Pre-emption Act, 1991 (Act IX of 1991) on 6th April, 1991. Application for revival of the dismissed preemption suit was presented under section 35 of the Punjab Pre-emption Act, 1991.
4. As the decision of the writ petition hinges upon section 35 of the above Act, it shall be a profitable exercise to make a reference to it. It runs as:-- "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 Ist 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."Instant pre-emption suit was instituted after Ist day of August, 1986 and before 28th March, 1990, on 10-3-1990.
5. Application for revival was submitted within sixty days of coming into force of the Act. The date of the dismissal of preemption suit was immaterial. Plain reading of the afore-noted section of the Act revealed that if the right of pre-emption was claimed in the previously dismissed pre-emption suit as is available under the new Act, the dismissal of the suit shall be of no legal effect and the suit on an application of the aggrieved person filed within sixty days of the commencement of the Act, subject to subsection (2) could be revived for decision afresh in accordance with the provisions of the new Act. Sections 13 and 30 of the new Act were subordianted to subsection (2) of section 35 of the Act. Section 13 dealt with the demand of pre-emption, the mode, and manner of exercise of three Talbs--Talb-i-Muwathibat, Talb-i-Ishhad, and Talb-i-Khusumat. Section 30 regulated the period of limitation for a suit to enforce a right of pre-emption under the new Act. Subsection (2) of section 35 provided that notwithstanding anything in sections 13 and 30, the period of limitation in respect of the suits mentioned in subsection (1) shall be one year and as for the Talbs, it was considered sufficient, if the pre-emptors established that he had made A Talb-i-Ishhad in presence of two truthful witnesses. There is not much dispute that Talb-i-Ishhad followed Talb-i- Muwathibat, which is the first demand for claiming pre-emption. It is not clear from subsection (2) as to whether the "saving" provisions dispensed with the first demand for pre-emption and insisted only on the second in the manner indicated in it, or that the performance of first demand was still considered an essential part for exercising right of pre-emption in respect of the suits mentioned in subsection (1). Since the plaint contained a clear reference to performance of Talb-i-Muwathibat and Talb-i-Ishhad, it is unnecessary to examine this point further for a final opinion on it. However, subsection (2) of section 35 did not dispense with the mandatory requirement of pleading "Zaroorat" or avoidance of `Zarar' for exercising right of pre-emption as visualized in subsection (2) of section 6 of Act IX of 1991. Subsection (1) of section 6 gave the category of the pre-emptors and subsection (2) insisted on "Zaroorat" or avoidance of `Zarar' for exercising right of pre-emption.
6. Without elements of `Zaroorat' or avoidance of `Zarar', exercise of right of pre-emption'was inchoate. Talbs were necessary for successfully sustaining the right of pre-emption. In absence of exercise of Talbs, the right of preemption shall be extinguished. In case of Muhammad Iltaf v.
7. Muhammad Nawaz 1992 M LD 1207, I took the view that pleading of `Zaroorat' or avoidance of 'Zara?
8. Was essential. My learned brother Munir A. Sheikh, J. Also subscribed to the same view in case of Falak Sher v. Muhammad Mumtaz and 2 others 1992 M LD 1879 (Lahore). View expressed by me in case of Muhammad Iltaf was not interfered with by the Supreme Court in Petition for Special Leave to Appeal No, 180 of 1992. Neither `Zaroorat' nor avoidance of `Zara? Which were necessary for exercise of right of pre-emption under B the new Act was pleaded in the plaint of the pre-emption suit dismissed on 28-7-1990, therefore suit could not be resurrected for decision afresh. Conscious of the above defect, an application under Order 6, Rule 17 of Civil P.C. For amendment of the plaint for incorporating `Zaroorat' or to avoid 'Zara? Was filed in this Court by the petitioneRs, In my opinion, revival could take place only if the plaint of the dismissed pre-emption suit already fulfilled and conformed to the requirements of the new law subject to a clear exception provided in subsection (2) of section 35 of the new law. Amendment to the plaint of an already dead suit could not be permitted for purpose of infusing a life into it, because that would tantamount to conferring jurisdiction on the Court for making an order for revival of the suit, which could only be allowed, if the existing plaint in it conformed to the requirments of the new legislation. In this view of the matter, I was reluctant to allow the proposed amendments asked for at the hearing. Pre-emption is a feeble right and that added to my reluctance also.
9. ' In view of the aforesaid, impugned orders of the Courts below could not be characterised either as illegal or without jurisdiction. Writ petition, therefore, fails in limine and is dismissed accordingly.