' The relevant facts for the decision of this appeal against the order are that the appellants purchased land through registered sale-deed dated 21-7-1988 and the respondents filed a suit to pre-empt the sale on 15-9-1988 in favour of the appellants, who filed the written statement and contested the suit. Thereafter, they moved an application under Order VII, Rule 11, C.P.C. For rejection of the plaint, which was accepted by the trial Court and the plaint was rejected vide judgment and decree dated 23-2-1993. The same was assailed through an appeal, which was accepted by Mr. Riaz Mehmood Warraich, learned Additional District Judge, Guj Eanwala vide order dated 12-6-1996 and the' case was remanded to the trial Court for decision in accordance with law. Hence present appeal, which was admitted to hearing on 27-6-1997 and the notices were issued to the respondents, who have appeared and contested the appeal.
2. The learned counsel for the appellants argued that the pre-emptors-plaintiffs have failed to make first two demands in accordance with law; therefore, the plaint was rightly rejected by the learned trial Court. It is added that in this behalf that there was no notice under section 13(3) of the Punjab Preemption Act, 1991. The learned counsel in this behalf has relied on the case of Muhammad Ramzan v. Lal Khan (1995 SCM R 1510). It is added that there was no statutory law of pre-emption either at the time of the Lale or of the filing of the suit, therefore, the suit would be governed by the Personal Law. In this behalf reference is made to the judgments reported as Ghulam Hamdani v. Muhammad Iqbal and 9 others (1993 SCM R 1083) and Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1). It is argued that if the suit is not competent then the plaint should be rejected at the earliest. In this behalf the learned counsel has relied on the judgments in the case of Capt. Dr. Abdul Wahab (Dec) Represented by Dr. Capt. Shahid Farooq etc. v. The Province of Punjab, etc. (1986 M LD 2049), Fazal Rahim v. MIs Al- Wajid Town (1994 M LD 126) and Burmah Eastern Ltd. v. Burmah Eastern Employees' Union (PLD 1967 Dacca 190). It is argued that the suit was not competent as right did not survive after the death of pre-emptor. In this behalf reliance is placed on the case of Malik Ghulam Nabi and others v.
Member-III Board of Revenue and 5 others (PLD 1990 SC 1043).
3. On the other hand, the learned counsel for the respondents argued that since there was no statutory law enforced at the relevant time, therefore, the preemption suit was governed by the Personal Law and as the suit was filed after making the demands, therefore, the same was competent. It is added that reference to provisions of pre-emption Ordinance or Act is irrelevant. In this behalf the learned counsel has referred to the judgments reported as Abdul Waris v.
Muhammad Yousaf (PLD 1997 SC 366), Federation of Pakistan and another v. N.-W.F.P. Government and others (PLD 1990 SC 1172) and Muhammad Aslam and others v. Muhammad Shafi (1995 M LD 441), and also referred to the case of Ghulam Hamdani, which relied by the learned counsel for the appellants. It is argued that the right of pre-emption is heritable. In this behalf reliance is placed on the case of Manzoor Elahi and others v. Ghulam Hussain (1994 CLC 2268). It is added that the case of Malik Ghulam Nabi (supra) is not relevant because that pertains to Balochistan Province. In this behalf reliance is placed on the case of Syed Mohiuddin v. Member-III, Board of Revenue, Balochistan and others (1991 SCM R 1194).
4. In the end it is argued that the appellants have not taken the grounds/objections in the written statement and the same were agitated in the application under Order VII, Rule 11, C.P.C. It is added that even the appellants have filed two petitions under Order VII, Rule 11, C.P.C. The Trial Court was ill-advised to reject the plaint on the grounds, which were not agitated in the written statement. It is argued that the trial Court proceeded to observe that "the appellate Courts of this District held that the suit regarding Urban Immovable Property are not maintainable". It is added that the decision rendered by the first appellate Courts namely District Judges or Additional District Judges have no binding force under the law.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, provisions of law, precedent cases and gone through the record. It is relevant to mention here that the trial Court has already framed issues on 12-12-1989 while the plaint was rejected almost more than 3 years thereafter on 23 2-1993. This was not proper for the simple reason that if the suit was legally not competent then the issues of law may have been treated as preliminary issues and decided as permissible under Order XIV, Rule 2, C.P.C. It seems that this legal course was not adopted because the appellants have not taken the objections, which were pleaded in the application under Order VII Rule 11, C.P.C. If looked from this angle the grounds taken in the two applications for rejection of the plaint were not part of the pleadings, therefore, could not be looked into. The trial Court proceeded to observe as under:-- ".... It has been held by the learned appellate Courts of this district that the suits regarding the urban immovable property are not maintainable and the same cannot be adjourned sine die awaiting the orders of the superior Court...."
The decision of the appellate Courts of the District are not precedents for the trial Courts. It is interesting to note here that in spite of this observation the judgment and decree of the trial Court was set aside by the first appellate Court. This clearly proved that this was just a pretext to throw out the plaint. The Punjab Pre-emption Act, 1913 came to an end on 31-7-1986 after it was declared to be repugnant of Injunction of Islam in the case of Government of N.-W.F.P. Through Secretary Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360), while the first Ordinance was promulgated w,e,f, 29-3-1990. The suits filed between the two dates were governed by the Personal Law of the parties. It is pointed out by the learned counsel for the appellants that the suit having been filed on 15-9-1988, therefore, the provision of Punjab Pre-emption Ordinance would not apply to the same and, therefore, there was no question of making Talabs in accordance with this Ordinance, 1990. The learned counsel for the respondents rightly referred to the case of Abdul Waris (supra) where the order of rejection of the plaint was set aside by the Hon'ble Supreme Court relying on the case of Haji Allah Bakhsh v. Abdur Rehman (1995 SCM R 459). It is also to be noted that the points raised by the learned counsel for the appellants including whether the suit was competent after the death of the pre-emptor are mixed questions of law and facts, therefore, could not be decided without framing issues and recording evidence. The objections as to the maintainability, want of demands and touching merits have to be dealt with by the trial Court in accordance with law. I am fortified in my view by the judgment of the Hon'ble Supreme Court in the case of Abdul Waris and of this Court to the case of Muhammad Aslam and others. This is not all.
The appellants have not complied with the provision of Order XLIII, Rule 3, C.P.C., therefore, the appeal is also liable to be dismissed on this ground.
6. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed with costs. The Trail Court is directed to decide the case expeditiously in any case by 23rd December, 1997.