1. ' Ninety-two Kanals of agricultural land situate in Chak No, 30/Janubi of Tehsil Sargodha belonged to Mst. Rashida Bcgum and two others. By deed registered on 15-1-1989, they sold it in favour of the petitioners for a sum of Rs,6,00,000. Respondents No,2 to 4 claimed pre-emption in respect of the above sale and brought a pre-emption suit for it on 11-2-1989. Superior right of pre-emption was asserted on the ground of being co-owners and participators in immunities. On 31-7-1990, the pre- emption suit was dismissed in the trial Court on the ground that decree in it could not be passed.
2. No appeal or revision was taken from the dismissal of the suit. Consequently, it attained finality under the law.
3. ' On 4-10-1990, respondents No, 2 to 4 brought a miscellaneous petition under section 36 of Punjab Pre-emption Ordinance, 1990 for resurrection of the pre-emption suit for its trial on merits in accordance with law. Petitioners contested the application. By decision dated 11-7-1991, civil miscellaneous was dismissed by the trial Court. Respondents Nos.2 to 4 preferred a revision to learned District Judge, Sargodha. By his order passed on 30-11-1992, revision was allowed and the pre-emption suit after its revival was remanded to the trial Court for its decision on merits.
4. Conclusion of the impugned order is summed up in its para 5. It reads, "In view of the above discussion, I admit the revision, set aside the impugned order and allow the application moved under sections 35 and 36 of the Pre-emption Ordinances and Act and restore the preemption suit filed by the plaintiffs petitioners and remand it to the Court of Mr. Zaheer-ud-Din, Civil Judge Ist Class, Sargodha." This decision was questioned in extra-ordinary jurisdiction of this Court by the petitioners. On 21-12-1992, their petition was admitted to hearing and further proceedings before the trial Court were stayed.
5. In terms of subsection (1) of section 35 of Punjab Pre-emption Act, 1991 (Act IX of 1991) pre-emption suits instituted or pending between 1-8-1986 and 28-3-1990 and dismissed could be revived on an application moved within sixty days of the commencement of the above Act, in case the right of pre-emption claimed in those suits was available under the new Act. Revival in subsection (1) was subjected to subsection (2) of section 35 regarding period of limitation and the performance of `Talab-e-Ishhad'. A glance at the plaint of the pre-emption suit would sufficiently indicate a reference to the performance of rituals of Talabs but it gave no indication of `Zaroorat' or avoidance of `Zarar' in it. The plaint was silent on this score. In fact, there was no averment, whatsoever, regarding `Zaroorat' or avoidance of `Zara? In the plaint of the pre-emption suit.
6. Section 6(2) of Act IX of 1991 provided that right of pre-emption shall be exercisable only in case of `Zaroorat' or to avoid 'Zarar'. This was notwithstanding the statement of qualifications for pre- emption enumerated in subsection (1) of section 6 of the Act. Language of subsection (2) was imperative. In Muhammad Iltaf v. Muhammad Nawaz 1992 M LD 1207, Fazal Ellahi and 2 others v.
7. District Judge, Attock and 3 others 1993 CLC 85, I had an occasion to express on the fulfilment of imperative requirement of subsection (2) of section 6 in the plaint of a pre-emption suit. I took the view that omission of a clear statement about `Zaroorat' or avoidance of `Zarar' for claiming pre- emption was fatal to the suit.This view was upheld in the Supreme Court. My learned brother Munir A. Sheikh, J. In case of Falak Sher v. Muhammad Mumtaz and 2 others 1992 M LD 1879 subscribed to similar view. As a necessary corollary of the above line of thinking in the Court, it was evident that the plaint of the pre-emption suit in its existing form could not qualify for success under the new law of preemption. Without amendment to the plaint for incorporation of a statement about `Zaroorat' or avoidance of 'Zara? In it, revival of the suit could not take place. I am afraid amendment towards the above end for ordering revival of the dismissed pre-emption suit was open to grave doubts. If the revival of the dismissed pre-emption suit was valid in strict compliance with the saving clause in section 35 of Punjab Pre-emption Act, 1991, subsequent amendment to the plaint was in the discretion of the Court. But for resurrection of a dismissed pre- emption suit for its retrial on merits, in my opinion, existing plaint alone was to be looked at without importing any foreign material into it. When the matter was looked at in this perspective, I could not persuade myself to agree with the learned District Judge for upholding his view. I would, accordingly, accept the petition, set aside the impugned order and restore the order passed by the trial Court dismissing the revival application with no order as to costs regarding this litigation in all the Courts.