' Through this Constitutional petition, the petitioner has challenged the order dated 1-2-1992 passed by a learned Civil Judge Ist Class Bahawalpur whereby petitioner's application under Order VII, Rule 11, C.P.C. Was dismissed and the order dated 9-2-1993 whereby the aforementioned order of the learned Civil Judge was affirmed and the petitioner's appeal was dismissed by the learned Additional District Judge, Bahawalpur.
2. The facts giving rise to the above-noted petition are that the respondent-plaintiff filed suit for pre-emption with respect to sale of land evidenced by sale-deed dated 6-12-1989 measuring 12 Kanals in Mauza Bhinda Dakhli on the ground of being a co-sharer in the Khata; being a co-sharer in the source of irrigation and on the basis of contiguity. The petitioner/defendant contested that suit; written statement was filed and the learned trial Court framed the following issues:--- "(1) Is plaint incompetent in its present form? OPD
(2) Is plaint devoid of pre-conditions of 'Zarar' and `Zaroorat'? Its effect on the merits of suit? OPD
(3) Was the plaintiff required to deposit 1/5th of sale price, 1/3rd of sale price at the time of the institution of the suit? OPD
(4) Is Pre-emption Act not applicable on the suit property? OPD
(5) Is plaintiff estopped by his conduct from filing this suit? OPD
(6) Is suit barred by time?
(7) Is suit wrongly valued?
(8) Has plaintiff superior right to pre-empt the suit property? On what terms and conditions?
(9) Are defendants entitled to special costs? OPD (9-A) Is complaint liable to be rejected for the reasons that there was no law of pre-emption existing at the time of institution of the suit?
(10) Relief.
3. Issues Nos.1, 2, 3 and 9-A were considered as preliminary issues. The petitioner-defendant in the meanwhile filed an application under Order VII, Rule 11, C.P.C. For rejection of the plaint on the grounds:--
(i) That during the period from 1-8-1986 to 28-3-1990 there was no codified law of pre-emption, therefore, the suit could not proceed.
(ii) That the mandatory provisions to constitute cause of action for filing the civil suit of pre- emption had not been followed.
(iii) That 1/3rd of the sale price had not been deposited in the Court.
4. The learned trial Court dismissed the application and decided the preliminary issues in favour of the plaintiff-respondent holding as follows:---
(i) That although the Punjab Pre-emption Act, 1913 was no longer in the filed and the new law had yet to be enacted when the suit was filed yet the general Islamic law relating to pre-emption was still holding the field.
(ii) That subsection (1) of section 6 of Punjab Pre-emption Act, 1991 is against the Injunctions of Islam.
(iii) That the respondent-plaintiff deposited 1/5th of the sale price under the order of the Court as there was no law of pre-emption to provide a guideline qua that. As the new law of pre-emption came into effect on 28-3-1991, the order qua deposit was modified and the respondent-plaintiff was directed to deposit 1/3rd of the sale price after deducting the amount already deposited within 30 days from the order.
5. The learned Additional District Judge, Bahawalpur affirmed the finding of the learned trial Court and dismissed the appeal observing that it was not the fault of the respondent-plaintiff that he did not deposit 1/3rd of the sale price after the filing of civil suit. However, pursuant to Court's direction with regard to deposit 1/3rd of the sale price, the respondent-plaintiff did comply with the order.
The finding of the learned trial Court, it was held, were unexceptional.
6. In support of his petition, the petitioner has made following submissions:---
(i) That the respondent-plaintiff is not a co-sharer in the same Khata.
(ii) That pursuant to the judgment in Said Kamal's case reported in PLD 1986 SC 360, the Punjab Pre-emption Act was rendered ineffective and there was no law from 1-8-1986 to 28-3-1990 and the suit of preemption could not proceed. In this connection, the learned counsel relied on a judgment of the Hon'ble Supreme Court reported in PLD 1990 SC 875(896) wherein it was held that all provisions of Punjab Pre-emption Act, 1913 have been declared unIslamic and, therefore, the entire Act is no longer a valid law since 31-7-1986.
(iii) That the mandatory provisions to constitute cause of action have not been fulfilled before filing of the suit. Reliance placed on PLD 1991 SC 217.
(iv) That 1/3rd of the sale price was not deposited in time by the respondent-plaintiff and this time cannot be extended by the Court. In support of this submission, the learned counsel relied on a judgment reported as 1993 CLC 939.
7. Controverting the submissions of the learned counsel for the petitioner, the learned counsel for the respondents has submitted that:--
(i) Section 35 of the Punjab Pre-emption Act, 1991 does not apply to pending cases. During the period when there was no codified law, the general Islamic law with regard to pre-emption would apply.
(ii) Requirements of `Zarar' and `Zaroorat' are no more mandatory as held in PLD 1994 SC page 1.
(iii) As the suit for pre-emption was filed beyond a period of 30 days, section 24 of the Punjab Pre- emption Act, 1991 was not applicable.
8.I have heard the learned counsel for both the parties and have also perused the record.
9. The registered sale-deed subject of pre-emption suit is dated 6-12-1989 and the suit was filed on 24-2-1990. The transaction of sale, therefore, pertains to a date which is after the target date in Said Kamal's case (PLD 1986 SC 360) i.e, 31-7-1986. The direction in the Said Kamal's case was given recognition through Legislation for the first time by promulgation of Punjab Pre-emption Ordinance, 1990 (Ordinance V of 1990) whereby the Punjab Pre-emption Act, 1913 was repealed and the Islamic law relating to pre-emption was enacted. However, this Ordinance was not retrospective in operation and resultantly during the interregnum period i.e, between 1-8-1986 to 28-3-1990 there was no codified law of pre-emption in operation. This Ordinance was given new lease of life by subsequent Ordinances i.e, Ordinance XII of 1990, Ordinance XVIII of 1990, Ordinance XXVII of 1990 and Ordinance IX of 1991. Eventually the Punjab Pre-emption Act, 1991 was enacted. Some of the relevant provisions of the new law are being reproduced below:--- "Sections 5. Right of pre-emption.---(1) The right of pre-emption shall arise in case of sale of immovable property.
(6) (2) Notwithstanding anything in subsection (1), the right of preemption shall .Be exercisable on in case of `Zaroorat' or to avoid `Zarar'.
13. Demand of pre-emption.---(1) The right of pre-emption of a period shall be extinguished unless such person makes demands of preemption in the following order, namely:---
(a) `Talb-i-Muwathibar;
(b) `Talb-i-Ishhad', and
(c) `Talb-i-Khusumae.
' Explanation.---(i) `Talb-i-Muwathibae means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of preemption.
' Note.---Any words indicative of intention to exercise the right of preemption are sufficient.
(ii) `Talb-i-Ishhad' means demand by establishing evidence.
(iii) `Talb-i-Khusumar means demand by filling a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption: ' Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-iMuwathibat under subsection (2), Talb-i-Ishhad under subsection (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.
24. Plaintiff to deposit sale price of the property.---(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under subsection (1) shall be available for the discharge of costs.
(4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.
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 Ist 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 contained 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 persons, 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."
10. Under section 35 of the Punjab Pre-emption Act, 1991, as reproduced above these pre-emption suits which were instituted or pending between the 1st day of August, 1986 and 28th March, 1990 and were dismissed on account of there being no law in the interregnum were extended protection provided the right of pre-emption claimed in those suits was available under the new Act. It was further stipulated that the aggrieved persons may make an application within 60 days of the enforcement of the Act and the suits shall be decided afresh according to the provisions of Punjab Pre-emption Act, 1991. The respondent-plaintiff admittedly filed the suit during the period specified above (between 1-8-1986 to 28-3-1990) i.e, on 24-2-1990.
11. A bare reading of paragraphs 3, 4 and 5 of the plaint annexed with this petition as Annexure-D would prima facie indicate that the respondent-plaintiff had a right available to him under the new Act to pre-empt the transaction of sale. These paragraphs read as follows:- {{URDU TEXT}} ' The aforementioned expression of three `Talabs' was sufficient in law to establish the right of pre- emption. I am fortified in my view by a judgment of the august Supreme Court reported in PLD 1994 SC page 1 (Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province) which reads as under:--- "(c) Islamic Jurisprudence.---Philosophy of Law of pre-emption--- Zaroorat---Zarar---Removal of Zarar can be taken as basic philosophy underlying the law of pre-emption---Right of pre-emption cannot be exercised only in the case of Zaroorat---Procedure prescribed for the three Talbs is sufficient to establish the right and an additional condition to prove the Zarar cannot be imposed on the plaintiff in case of Shuffah."
' However, as section 35 had apparently protected and referred to "all decrees, judgments or orders dismissing the suits of pre-emption instituted or pending between the 1st day of August, 1986 and 28th March, 1990", the respondent-plaintiff, it seems thought that this provision did not relate to the cases which are still pending decision and, therefore, no application was made "within 60 days of the coming into force of this Act" to have the case decided under the provisions of the new law. In fact on 4-5-1991, the trial Court framed the issues. Moreover, the maintainability or otherwise of the pre-emption suit was subject-matter of issues Nos 1, 2, 3 and 9-A. There was no occasion for the respondents-plaintiffs to invoke the provisions of saving clauses Of the new Preemption Act.
12. The spirit reflected in section 35 of the new Act is that all those preemptors who were non-suited on account of a vacuum created after the decision of Said Kamal's case till the promulgation of the Punjab Pre-emption Act, 1991 but had a right to pre-empt under the aforementioned new law, should be given a fairer deal and their suits should be re-serrated provided they make an application within 60 days of the promulgation of the Act. The petitioner's argument that the plaint merited rejection is not tenable as even if his application had been accepted and the learned trial Court had dismissed the suit under Order VII, Rule 11, of the C.P.C., the same would have been restored in view of the mandatory provisions of section 35 referred to above. Merely because the suit was pending would not disentitle him to the protection granted in terms of the new law.
13. The reference made by the learned counsel for the petitioner to a judgment of the Hon'ble Supreme Court reported in PLD 1990 SC 856 to contend that all provisions of the Punjab Pre- emption Act, 1913 are no move valid cannot be disputed. However, this observation given by the august Supreme Court in a suo motu notice was in an entirely different context and the Punjab Pre- emption Act, 1991 had not come into force by then. After the promulgation of the Punjab Pre- emption Act, 1991, a new law of pre-emption has come into field which has extended protection to those pre-emptors who were non-suited between 1-8-1986 to 28-3-1990 provided the right of preemption claimed by them is available under the aforementioned new Act. The case of the respondent-plaintiff would fall under this category as the right being claimed is prima facie available to him under the new dispensation and an attempt is being made by the petitioner to non-suit him. In a judgment of the Hon'ble Supreme Court reported in 1993 SCMR 1093, it was held that in a state of vacuum the Injunctions of Islam as contained in the 'Holy Qur'an' and `Sunnah' should be deemed to be the law on the subject.
14. When confronted with the argument that the Punjab Pre-emption Act, 1991 would be applicable and the rights of the respondent-plaintiff stand protected, the learned counsel for the petitioner attempted to argue that even then the respondent-plaintiff stands non-suited as he did not deposit 1/3rd of the sale price of the property within 30 days of the promulgation of the new law.
Before the Punjab Pre-emption Act, 1991 (Act No,9 of 1991) could be enacted, the intent of the law- makers was expressed through the promulgation of Ordinances and the first Ordinance in the filed is Ordinance V of 1991. Section 24 of the said Ordinance stipulates that "in every suit for pre- emption the Court shall require the plaintiff to deposit in such Court 1/3rd of the sale price of the property in cash within such period as the Court may fix provided that such period was not extended beyond 30 days for filing of the suit".
15. The respondent-plaintiff had admittedly deposited 1/5th of the sale price of the property at the time of filing the suit. The suit was filed prior to the promulgation of the aforementioned Ordinance i.e, on 21-3-1990. After its promulgation, the respondent-plaintiff could only have deposited 1/3rd of the sale price if there was direction of the Court in terms of the afore-referred section 24 of the said Ordinance. The learned trial Court gave a direction to the respondent-plaintiff "to deposit 1/3rd of the sale price after deducting the amount already deposited within 30 days from now" on 1-2-1992 while dismissing petitioner's application under Order VII, Rule 11 of the C.P.C. Whether the learned trial Court could extend the period of 30 days for depositing 1/3rd of the sale price would be a separate question. In fact the Hon'ble Supreme Court in a judgment reported in 1992 SCMR 746 has held that if the Court has already passed an order qua the deposit of the sale price it could not pass any order after 30 days of the institution of the suit. However, in that case it was the pre- emptor who had challenged the order for deposit of additional sale price and the order of the learned trial Court was set aside and it was directed to proceed on the basis of the sale price already deposited. The case before the Hon'ble Supreme Court pertained to North-West Frontiers Province where the new Pre-emption Act had been enforced in 1987. The facts in the present cases are distinguishable. The respondent-plaintiff had deposited 1/5th of the sale price as no codified law was existent and it was after the promulgation of the new law that the learned trial Court, on an objection being raised by the petitioner-defendant, had directed the respondent-plaintiff to deposit 1/3rd of the sale price. The learned trial Court appears to have passed the order keeping in view section 24 of the new law. The Ordinance No, V of 1990 as also Act 9 of 1991 is silent with regard to the cases which were pending at the time of the promulgation of the Ordinance in question. If the learned trial Court has passed an order for the deposit of 1/3rd, rather belatedly, this error of the Court should not prejudice the case of the respondent-plaintiff. It is a settled principle of law that a party should not be made to suffer for mistake of the Court or its official. In this connection I am fortified in my view by two judgments of this Court reported in 1986 CLC 838 and PLD 1961 Lahore 199.
16. The question of interpretation of certain provisions of Punjab Preemption Act, 1991, its scope and extent was profound and of necessity involved the question of legislative intent. In order to ascertain or discover that intent it is a recognized principle of interpretation of statutes that the whole Act has to be considered. The Preamble of Act 9 of 1991 is to the effect "whereas it is expedient to re-enact the existing law relating to the pre-emption so as to bring it in conformity with the Injunctions of Islam as set out in the "Holy Qur'an" and "Sunnah". Conscious of the vacuum created after the pronouncement of judgment in Said Kamal's case (PLD 1986 SC 360) and taking note of the preemptors who might have suffered during the interregnum, the Legislature in its wisdom decided to extend protection to such pre-emptors, by inserting a saving clause in terms of section 35 of the Punjab Pre-emption Act, 1991. Keeping in view the background, the Preamble and section 35 of the said Act it would be clear that the Legislature intended to save the pending cases also provided the right claimed in such suits is available under the new Act. Any other interpretation would lead to an unjust anomaly which could not be attributed to the Legislature.
Though the facts in the Hon'ble Supreme Court judgment reported in PLD 1994 SC page 1 were different but the following observation (at page 20) of the Hon'ble Court is supportive of the view being taken here: "52. We have paid due attention to the contention of the learned counsel. In fact, section 35(2) has protected two categories of suits. It has protected, firstly, the suits instituted after 31st of July, 1986, and secondly, the suits which were pending at that date."
17. For aforementioned reasons, this petition has no merit which is hereby dismissed with no order as to costs.