This revision petition is directed against the order, dated 3rd May, 1993 of the learned Civil Judge whereby the application under Order 6, Rule 17, C.P.C. for amendment of the plaint so as to add para. 3-A containing the assertions, pertaining to `Zaroorat' for pre-emption, was allowed. The petitioner had earlier filed a revision petition challenging the said order before the learned District Judge, Sargodha, but he dismissed the same vide judgment dated 16-11-1993 for want of jurisdiction observing that "the jurisdiction of the Court which. was available under section 115, C.P.C. has been abrogated by Ordinance XXXIII of 1993 and the only forum available to the petitioner for the redress of his grievance is the Hon'ble High Court whose revisional jurisdiction has been kept intact:" Learned counsel explained that learned District Judge instead of dismissing the revision petition on account of enforcement of Ordinance XXXIII of 1993 should have returned the revision petition for presentation before the High Court which is the appropriate fate forum. He argued that despite dismissal of the revision petition the petitioner is entitled to approach this Court for exercise of its revisional jurisdiction as even dismissal of revision petition for lack of jurisdiction does not preclude this Court from examining legality of the order passed by the learned trial Court. He added that three different pleas regarding the effect of omission of subsection (2) of section 115, C.P.C. by Ordinance XXXIII of 1993 are being canvassed before the learned District Judges. These pleas are: (1) that revision as has been held to be a remedy as a matter of right (See PLD 1987 SC 139) despite omission of the said provision from section 115, C.P.C. pending revision petitions will have to be disposed of on merits; (2) with the taking away of the power of revision, the District Court cannot proceed with the pending revision petitions and there is no alternative but to dismiss the same; (3) the District Court as stands denuded of the power of revision, it cannot proceed to dismiss the pending revision petitions and the only order which is to be passed is of returning the revision petitions to the petitioners for presentation before the appropriate forum. Learned counsel submitted that some of the District Judges in Punjab are dismissing the revision petitions while the others are returning the revision petitions for presentation before the High Court. Some cases have come to notice where either of the two orders have been passed, i.e. order dismissing the revision petitions and the orders returning the revision petitions for presentation to this Court.
2. As the question of effect of enforcement of Ordinance XXXIII of 1993 whereby revisional power vesting in the District Court has been taken away, is of general public importance, learned Advocate-General as well as Ch. Hamid-ud-Din, one of the Senior Advocates, were called upon to assist the Court.
3. The relevant facts of the instant case are that order allowing amendment of plaint passed on 3rd May, 1993 was challenged by filing a revision petition on 16-5-1993. The Ordinance XXXIII of 1993 was enforced with effect from 13-10-1993. This Ordinance has omitted subsections (2), (3) and (4) of section 115, C.P.C. These subsections empowered District Court to exercise power conferred on the High Court by subsection (1) of section 115 in respect of a case decided by a Court subordinate to it in which no appeal lay and the amount or value of the subject-matter whereof did not exceed the limit of the appellate jurisdiction of the District Court. These subsections so omitted were added by Ordinance XII of 1972, dated 30th May, 1972. This revision was filed with the District Court, Sargodha at a time when the power of revision vested with the District Court. The revision petition was, however, dismissed vide impugned judgment dated 16-11-1993, as the District Court was deprived of the power of revision vide Ordinance XXXIII of 1993. Kh. Muhammad Farooq, learned counsel for the petitioner, learned Advocate-General as well as Ch. Hamid-ud-Din, amicus curiae were of the view that effect of the omission of subsections (2), (3) and (4) of section 115, C.P.C. is that a District Court stands denuded of the revisional power and as such the said power even in pending revision petitions cannot be exercised by it. They added that in the circumstances a. District Court cannot even proceed with the pending revision petitions which per force have to be returned to the petitioners for presentation before the appropriate forum i.e. High Court. In support of this point of view, they referred to the cases of Alifdin v. Shaukat Ali (PLD 1969 Peshawer 62), Adnan Afzal v.
Captain Sher Afzal (PLD 1969 SC 187), Abdul Khaliq v. Muhammad Afsar and 3 others (PLD 1981 Lah.
480), Chief Secretary, Azad Government of Jammu & Kashmir v. Sardar Sikandar Hayat Khan (PLD 1982 SC (AJ & K) 112). It was further pointed out that only one of the forums with which revisional jurisdiction earlier vested has been denuded of the said power and as such right to approach the High Court by filing revision petition continues to exist and as there is only curtailment of one of the forums, Ordinance would apply to the pending cases as well. It was added that the remedy of revision has been made more effective as now all the revision petitions against interlocutory revisable orders will receive the attention of the higher forum and another opportunity of approaching the Supreme Court through Petition for Special Leave to Appeal will also become available. It was argued that in this manner despite curtailment of one forum approach to the Supreme Court has been made possible and in that way in fact the interest of justice has been advanced. Learned counsel further pointed out that in some cases unjudicious invocation of revisional power at interlocutory stage of the suit sealed the fate of the case and in the presence of the order passed in exercise of revisional jurisdiction, the parties stood precluded to challenge the said order or agitate the said question so decided at subsequent stage in the appeal filed against the decree ultimately passed. It was pointed out that in such a situation the Appellate Court had to treat the matter as closed, the same having been decided in revision by the District Court at interlocutory stage. Such a situation was highlighted by this Court in the case of Mst. Fazal Begum v. Bahadur Khan and another (PLD 1983 Lahore 365) as under:-- "The District Courts while exercising the powers conferred by sub--section (1) of section 115, C.P.C. must keep in mind the limit and the scope of the jurisdiction they are called upon to exercise. The principles laid down by the superior Courts pertaining to the exercise of revisional jurisdiction must be followed strictly, as otherwise, the unjudicious exercise of power is likely to result in suppressing instead of advancing the interest of justice. The Courts while exercising revisional jurisdiction, especially, in respect of interlocutory matters or matters which can be agitated at time of appeal against the final judgment, should act with due care and caution so that the interest of justice may not suffere and so that the propriety, regularity or legality of the same could be scrutinised in appeal, a jurisdiction which is wider and exhaustive in content and scope than the revisional jurisdiction."
4. Learned counsel appearing for the respondents did not controvert the proposition of law as canvassed by the learned counsel for the petitioner and the learned Advocate-General. The effect of change of forum was commented upon by the renowned jurist Mr. Justice Sulaiman of Allahabad High Court in the case of Hazari Tewari v. Mst. Maktual Chaubain and another (AIR 1932 Allahabad 30) as under:-- "It 'seems to us that a right of action is something different from the choice of the forum. There may be a vested right of action when the cause of action has accrued before the old Act has been altered; but there can be no vested right in the choice of a particular forum. If the legislature has thought fit to deprive the Civil Court of its jurisdiction to entertain suits of a particular nature, a plaintiff cannot compel the Civil Court to hear his suit merely because his cause of action had accrued before the new Act depriving the Civil Court of its jurisdiction was passed. The choice of forum is a matter of procedure and not a substantive right, and in most cases a new Act would have a retrospective effect so far as the choice of forum is concerned. The analogy of a new Act not affecting a pending action does not apply., The precise question stands fully answered by the Supreme Court in the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187). The pertinent observations appearing at page 192 are as under:-- "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action,, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus, a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation -giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively,".
5. Keeping these principles in view Mr. Justice Hamoodur Rehman, the then Chief Justice examined the provisions of West Pakistan Family Courts Act and the provisions contained in section 488 of Criminal Procedure Code and recorded the conclusion that "The Family Courts Act has changed the forum, altered the method of the trial and empowered the Court to grant better remedies". It was, therefore, held that the Act affected also pending proceedings and the Courts of Magistrate had no longer any jurisdiction either to entertain, hear or adjudicate upon any matter relating to maintenance and that the application under section 488, Cr.P.C. however, could not be dismissed for, if the Magistrates have no jurisdiction to adjudicate upon, he should have returned the application to the applicant for presentation in the proper Court. The principle so enunciated in this case was followed in other judgments subsequently delivered. These judgments have been noted above.
6. The effect of omission of subsections (2), (3) and (4) from section 115, C.P.C. is that District Court stands denuded of the powers of revision and as such it cannot proceed to decide the revision petitions pending before it. The order which legally thus can be passed in the pending revision petitions is to return the same for presentation before this Court. The curtailment of one forum as such though would cause inconvenience to the petitioners and some additional expenses as well, but in the ultimate analysis such petitioners would be able to avail of another opportunity to approach the Supreme Court which remedy was not available in case of disposal of the revision petitions by the District Court. The order dated 16-11-1993 dismissing the revision petition thus could not legally be passed as with the taking away of the power on account of omission of subsections (2), (3) and, (4) from section 115, C.P.C., the revision could not be proceeded with. In any case, the petitioner has approached this Court by presenting the present revision petition which was entertained and the learned counsel was heard on merits.
7. As regards merits it was argued that as in the suit for pre-emption, there was no mention of `Zaroorat' for pre-emption or avoidance of `Zarar' it was not maintainable and it merited to be dismissed. Learned counsel referred to Rab Nawaz v. Mehmood Khan (1993 SCMR 2318) wherein it was observed that in default of expressing `zaroorat' or avoidance of `zarar' leading to pre-- emption suit would not be maintainable. He argued that failure to plead expressly the relevant assertions as to `zaroorat' or `zarar' could not be allowed to be remedied by allowing amendment.
8. The plea of `zaroorat' and `zarar' was considered necessary part of the plaint in view of provisions contained in subsection (2) of section 6 of the Punjab Pre-emption Act. Subsection (2) of section 6 has however been held to be repugnant to the Injunctions of Islam by the Federal Shariat Court in its judgment of 30th May, 1991. This view has been upheld by the Appellate Shariat Bench of the Supreme Court in the case of Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab (PLD 1994 SC 1). Relevant observations in paras. 23 and 24 may be quoted for ready reference:-- "23.No doubt, the basic philosophy of the law of pre-emption is to avoid Zarar, but it is not incumbent upon a plaintiff in the case of pre--emption to prove the Zarar in each case individually.
The traditions of the Holy Prophet on which the right of pre-emption is based, have never referred to a concept of Zarar, nor did they make it a pre--condition for the exercise of this right. Instead, the existence of Zarar has been assumed in every case of pre-emption where a plaintiff has fulfilled the basic conditions for the right of pre-emption, such as making the three Talabs, which will automatically show that he wants to avoid Zarar by his laying the claim of pre-emption.
Therefore, the procedure prescribed for the three Talabs is sufficient to establish the right , and an additional condition to prove the Zarar cannot be imposed on a plaintiff in the case of Shuff'ah 24..Although the removal of Zarar can be taken as a basic philosophy underlying the law of pre- emption, but in the manner in which it has been laid down in section 6(2) of the Act 1991 it has become a pre-condition for the exercise of the right of pre-emption and onus to prove the Zarar has been laid on the plaintiff without which he has been denied the right of pre-emption. The logical result of section 6(2) is that if a person who is a co-sharer of a vendor has made all the three Talabs required under section 6(1) of the Act 1991, but did not mention in his plaint that his claim to pre-emption is based on the Zarar apprehended by him, his claim to pre-emption shall be rejected. Such a person is entitled to the claim of pre-emption under the express traditions of the Holy Prophet, but section 6(2), debars him from the right of pre-emption. Therefore, this subsection contravenes the Injunctions of Islam as laid down in the Sunnah of the Holy Prophet and the judgment of the Federal Shariat Court being well-founded the appeal of the Punjab Government in this respect is dismissed."
9. It will, therefore, be seen that in view of above decision of the Appellate Shariat Bench, a pre- emption suit cannot now be dismissed for want of pleading `zaroorat' or avoidance of `zarar'. Even if the amendment which has been allowed to be made vide impugned order is made, the petitioner/defendant does not stand deprived of either any right legally accruing to him or of any plea in defence otherwise available to him. I am of the view that interference at this stage will cause unnecessary delay in the hearing of the suit on merits.
For all the above reasons, no case is made out for interference in exercise of revisional jurisdiction.
The revision, therefore, fails and is dismissed, leaving the parties to bear their own cost.