' MUHAMMAD AFZAL LONE, J.---The facts are that Said Ameer Khan, the appellant, filed a pre- emption suit against the respondents' predecessor-in-interest, namely, Fateh Sher Khan, on the ground that he was co-sharer in the Khata of the land in dispute measuring 64 Kanals, 10 Marlas, falling in Khewat Nos.435/9 and 437/11. The learned trial Court accepted the appellant's superior right of pre-emption to the extent of the land sold from Khewat No,435 and also answered other issues in his favour, except issue No,5-A, which was decided against him, resulting in dismissal of the suit by judgment dated 5-9-1982. This issue is reproduced below:- "5-A.Whether the plaintiff carelessly, mala fidely and for playing fraud upon the Court has prepared the wrong Jhar Paidawar and has fixed the incorrect and insufficient court-fee. If so, the effect of the same?"
' The Appellate Court, however, reversed the finding on the said issue and remanded the case to the trial Court to determine the rquisite court-fee, given an opportunity to the appellant to make good the deficiency and then proceed in the matter, thereafter. In pursuance of the remand order, the appellant paid the proper court-fee as determined by the trial Court. As its findings on other issues had not been set aside by the Appellate Court, the trial Court decreed the suit on 17-11-1987 to the extent of land measuring 41 Kanals 13 Marlas falling in Khewat No,435. The learned Additional District Judge declined to interfere with the decree and dismissed the respondents' appeal on 22- 6-1988. The unsuccessful respondent then filed a second appeal.
2. In Government of N.-W.F.P. v. Said Kama'. Shah (PLD 1986 SC 360), it has been laid down that no decree can be passed in favour of a pre-emptor, if he has failed to obtain a decree before 31-7- 1986. Relying on this rule, the High Court maintained that the appellant's suit having been decreed for the first time on 17-11-1987, such decree could not be sustained. Consequently, the respondent's second appeal was accepted and the suit dismissed. This dismissal is under challenge before us.
3. In support of this appeal it is contended that the law laid down by this Court in Said 'Canal's case has not been correctly applied by the High Court. According to the learned counsel for the appellant the passing of the decree before 31-7-1986 covers decrees passed both for and against the pre-emptors and, therefore, dismissal of the suit on 5-9-1986 would enure to the appellant's benefit; the suit could proceed and was not hit by the dictum of this Court in Said Kamal's case.
4. It is not possible to agree with the learned counsel. The effect of the decision in the aforesaid case was examined by this Court in some depth in Sardar All v. Muhammad All (PLD 1988 SC 287); several questions arising in this behalf have been posed at page 310 of the report; of which question No,2 is reproduced below:- Whether a plaintiff in a pre-emption suit having failed in the trial forum and having remained unsuccessful in obtaining a decree in his favour even in appeal, revision or writ petition before 31st of July, 1986, can be granted a decree by any of the higher forums where his case was pending on that date including the Supreme Court."
' The reply to this question is embodied in para. 16 of the judgment, which is reproduced below:- "In the light of the foregoing analysis and interpretation of the provisions of the Constitution itself, it is clear that pending cases in the pre-emption matters were to continue to their logical ends without a vacuum and the decrees passed in the meanwhile before 31-7-1986 would have effect accordingly. But in cases where only suits were filed or proceedings were pending without culmination into decrees in favour of the plaintiff before that date, no fresh decree could be passed subsequently; because those laws ceased to have effect on that date rendering such subsequent fresh decrees without contemporaneous legal support."
' There should be thus no doubt that, according to the enunciation made by this Court only those cases were saved in which decree in favour of the pre-emptor was passed prior to 31-7-1986.
5. The Punjab Pre-emption Act, 1913, was repealed by the Punjab Preemption Ordinance, 1990 (Ordinance V of 1990). In an endeavour to demonstrate that the suit could proceed under the new dispensation, the learned counsel invited our attention to para. 8 of the judgment dated 2-12-1991 in Muhammad Sharif v. Muhammad Sharif (1992 SCM R 1129), which runs as under:-- "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 applied to such judgments and decrees which have been passed in favour of the plaintiffs preemptors, in view of the decision of this Court in Sardar Ali'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."
6. These observations were made by a learned D.B. While construing section 34 of the Punjab Pre- emption Ordinance V of 1990. We may, however, refer here with advantage the judgment rendered on 20-1-1992 in Rozi Khan v. Karim Shah (1992 SCM R 445) by a larger Bench, to which one of us (MA.
Lone, J.) is a party. In this case section 35(2) of the N.-W.F.P. Pre-emption Ordinance, which corresponds with section 34(2) of the Punjab Pre-emption Ordinance V of 1990 fell for consideration before the Court; therein the trial Court dismissed the suit but the First Appellate Court granted a decree to the pre-emptors on 16-5-1983. This decree was, however, reversed on revision by the High Court vide judgment dated 16-5-1987, resulting in dismissal of the suit. It was during the pendency of the revision that the N.-W.F.P. Pre-emption Act, 1987 was enforced; section 35 whereof repealed N.-W.F.P. Pre-emption Act, 1950. A question arose as to what was the effect of section 35 on the suits and appeals, etc. Instituted under the repealed Act, which were pending when the repealing Ordinance was promulgated. After some discussion of an earlier decision in Ghulam Sarwar v. Abdul Jalil (PLD 1991 SC 500) it was observed (in Rozi Khan's case):-- "As a matter of fact, the decree in favour of the pre-emptor by the appellate Court was passed on 16-5-1983 much before the enactment of the N.-W.F.P. Pre-emption Act, 1987 and also much earlier to this Court's judgment in the case of Said kamal Shah (PLD 1986 SC 360), as a result whereof the provisions of the N.-W.F.P. Pre-emption Act, 1950, became ineffective from 31-7-1986. However, even the learned Judges did note in their judgment that:- ' On the question of law the learned counsel for the respondents contended that consistent with the decisions of this Court, the word final while the appeal is still pending should be given the same meaning which have been given by the Supreme Court in its decision in Sardar All and others v.
Muhammad Ali and others (PLD 1988 SC 287). Where a decree had been passed in favour of the pre-emptor only then the proceedings would continue to be governed by the law which stands repealed.'
' In view of the foregoing we are inclined to hold that the words `judgments and decrees passed by the Courts have become final' in subsection (2) of section 35 mean 'those judgments and decrees wherein the suit of the pre-emptor has been decreed by the Courts rendering it'."
The judgment in Rozi Khan's case is later in time but was not brought to the notice of the Bench, which rendered judgment in Muhammad Shari? Case. The view taken in Rozi Khan's case would prevail. The decision of the High Court that the appellant's suit cannot proceed, as no decree was passed therein before 31-7-1986 is thus not open to any valid objection.
' This appeal is, therefore, dismissed but the parties are left to bear their own costs.