' MUNAWAR AHMAD MIRZA, J.--Facts leading to present appeals are brief and simple.
2. Respondent Muhammad Yousaf filed two separate civil suits against the appellant Abdul Waris on 13-1-1990 claiming possession through pre-emption concerning land comprising of (i) Khewat No,19, Khatauni No,62, Khasra No,117 measuring 6 Kanals and (ii) Khewat No,19, Khatauni No,61, Khasra No,111 measuring 8 Kanals; situated in Mauza Tamboli before Civil Judge, Gujranwala.
Appellant on 19th May, 1990 filed written statements repudiating the claims in both these matters.
After framing the issues, parties had adduced some evidence.
3. During the pendency of proceedings, appellant submitted an application under Order VII, Rule 11, Civil Procedure Code asserting that suit filed by respondent neither fulfills the requirements of law nor discloses cause of action. Respondent Muhammad Yousaf contested this application. It may be seen that learned Civil Judge, Gujranwala allowed said application and rejected the plaint, by means of order, dated 22nd March, 1992. Being dissatisfied from above decision, respondent Muhammad Yousaf filed Civil Appeals Nos.70 and 71 of 1992 before learned Additional District Judge, Gujranwala which were dismissed in limine vide judgment, dated 22nd of April, 1992. The above-referred decisions of both the forums, below, were challenged by respondent (Muhammad Yousaf) in Lahore High Court through two separate Revision Petitions Nos.1126 and 1127 of 1992.
Eventually, these petitions were accepted by the High Court vide common judgment, dated 31st of October, 1992. The decisions of forums below, regarding rejection of plaint were set aside, and suits remanded to the trial Court for disposal on merits. The last-mentioned judgment of Lahore High Court was assailed through S.P.S.L.A. Nos. 55-L of 1993 and 56-L of 1993. Leave was granted by this Court on 19th January, 1994 in the following terms:-- "Leave to appeal is granted as the cases are not found to be fully covered by section 34 or section 35 of the Punjab Pre-emption Act, 1991 and the facts of Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 are distinguishable. The pre-emption suits were instituted within the dates specified in section 35 of the Punjab Pre-emption Act but no order of dismissal etc. Was passed nor was it a case of decision afresh."
4. Mr. M. Anwar Sipra, Advocate Supreme Court, strenuously argued that Lahore High Court while accepting the revision petitions, has misconstrued relevant law and misinterpreted import of section 35 of "the Punjab Pre-emption Act, 1991" whereby according to him, impugned judgment was inherently defective. It was urged that principle of law enunciated in 1992 SCMR 1129 (Muhammad Sharif v. Muhammad Sharif) has not been correctly applied to facts of present case causing serious prejudice to appellant.
5. Whereas Mr. Talib H. Rizvi, Advocate Supreme Court, learned counsel for respondent vehemently opposing the appeal contended that section 35 of Punjab Pre-emption Act, 1991 also includes undecided matters which were still pending adjudication. Learned counsel maintained that persons asserting right of pre-emption during crucial period could not be denied normal remedy and their rights were fully protected under the provisions of sections 34 and 35 of Punjab Pre- emption Act, 1991. Therefore, according to him impugned judgment did not suffer from any legal defect. He has also relied upon observations in cases (i) 1995 SCMR 459 (Haji Allah Bakhsh v. Abdul Rehman and others) and (ii) PLD 1993 Lahore 44 (Ahmad Hussain v. Muhammad Hussain).
6. We have perused the record and considered arguments advanced by learned counsel for parties in the light of relevant law. Record clearly reveals that suits for pre-emption were instituted by respondent Muhammad Yousaf on 13th of January, 1990. Un disputably, right for claiming property through preemption was available to the aggrieved party. However, by means of judgment passed by Shariat Appellate Bench in case Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and others, inter alia, provisions of Punjab Pre-emption Act, 1913 were declared repugnant to Injunctions of Islam and concerned Government was directed suitably to amend the same by 31st July, 1986. It appears that Legislature omitted to enact law relating to pre-emption for a considerable period. However, Government of Punjab towards 29th March, 1990 issued Punjab Pre-emption Ordinance V of 1990; when it lapsed, Ordinance XII of 1990, dated 28th May, 1990 was re-enacted on the same pattern. Again upon the lapse of said Ordinance, the Governor of Punjab successively promulgated Ordinance XIII of 1990, dated 27th August, 1990 and Ordinance XXVII of 1990, dated 26th November, 1990. These two Ordinances, however, contained saving clause to cover the vacuum concerning matter instituted or decided during interregnum period falling between 1st of August, 1986 till 28th March, 1990.
Eventually, the Punjab Pre-emption Act, 1991 was promulgated on 6th of April, 1991 whereby section 34 catered for repealing existing laws providing continuity to pending proceeding and specified decided claims were saved by section 35 of said enactment. For convenience, sections 34 and 35 of the Punjab Pre-emption Act, 1991 are reproduced below:-- "34. Repeal of Act I of 1913.--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 1st 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 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 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."
7. Appellant's counsel has greatly stressed that only those suits which had either been decreed or dismissed during 1st day of August, 1986 and 28th March, 1990 were saved under section 35 of Pre- emption Act, 1991 and pending matters during above-referred period were not regulated by new enactment, therefore, according to him, plaints were rightly rejected by trial Court and First Appellate Court. This contention though ingenious yet has not impressed us. It is difficult to assume that when suit is pending and undecided, same would not be maintainable; but if matter has been decided during specified period the 'lis' can be revived. This approach apart from being self- contradictory, in our opinion negates established principle showing where right exists obviously remedy is provided by law. Therefore, by no stretch, it cannot be conceived that during crucial period from 1st August, 1986 till 28th March, 1990 aggrieved persons were completely deprived from asserting right of pre-emption. We have absolutely no doubt in our mind that proceedings relating to pre-emption suits pending during 1st August, 1986 till 26th March, 1991 cannot be left in an inchoate state. Interpretation must be favouring to evolve procedure for final determination of controversy between the parties, to attain finality. In almost similar circumstances, stand taken by learned counsel for appellant was repelled in case Haji Allah Bakhsh v. Abdur Rehman 1995 SCMR
459. Relevant observations are reproduced below:-- "4. The above contention seems to be devoid of any force. In order to press into service the provisions of Order VII, Rule 11, C.P.C. The averments contained in the plaint are to be presumed to be correct. On the above assumption the plaint is to be examined and if the case falls under any of the clauses (a), (b), (c) and (d) of Rule 11, the plaint is liable to be rejected. The above clauses read as follows:--
(a) Whether it does not disclose a cause of action?
(b) Where the relief claimed is undervalued, and plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.
(c) Where the relief claimed is properly valued, but the, plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court fails to do so.
(d) Where the suit appears from the statement in the plaint to be barred by any law."
5. In the present case on the basis of the contents of the plaint, it could not have been held that the plaint does not disclose any cause of action or that relief claimed is undervalued and the plaintiff failed to correct the valuation in spite of the time fixed by the Court or the plaint is written upon insufficient stamp paper and the plaintiff failed to supply the requisite stamp-paper within the time fixed by the Court or that the suit was barred from the statement in the plaint by any law. In this view of the matter, the learned Civil Judge was competent to reject the above application under Order VII, Rule 11, C.P.C. The petitioner is free to raise whatever legal or factual pleas are available to him to show that the suit is not maintainable but the rejection of the plaint could not have been sought on the above grounds which were pressed into service. Leave is refused."
8. Therefore, following the above dictum, we are unhesitatingly inclined to ,hold, that orders for rejection of plaint by learned Civil Judge, Gujranwala, dated 22nd March, 1992 and Additional District Judge, Gujranwala, dated 22nd April, 1992 were devoid of lawful authority, as such rightly set aside by Lahore High Court. It may be clarified that question regarding limitation and other objections pertaining to maintainability or merits have to be dealt with by the trial Court in accordance with law.
9. For the above reasons, we find no substance in these appeals which are consequently dismissed. Parties are left to bear their own costs.