This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question, the orders, dated 24-9-1991, of respondent No.3.
2. A suit for pre-emption was filed by the petitioner; to pre-empt sale of land measuring 5 Kanals, 10 Marlas, effected through Mutation No.337, dated 20-4-1989, on the ground of being co-sharer in Khata and common easement.
3. During the pendency of suit, respondent No. 1, filed an application for rejection of plaint, on the ground that no law of pre-emption was invogue at the time of filing of this suit and, therefore, the petitioner could not maintain a suit for pre-emption. The application was dismissed by the learned Civil Judge, vide order, dated 15-6-1991.
4. A revision petition was filed against order, dated 15-6-1991, which was allowed by the learned Additional District Judge and in consequence, the suit for pre-emption was dismissed. The learned Additional District Judge, took the view,. That Punjab Pre-emption Act of 1913 had already been declared repugnant to the Injunction of Islam and that section 35(1) of Punjab Pre-emption Act, 1991 could not operate retrospectively and also that there being no law of pre--emption as on the date of filing of the suit, the petitioner could not obtain a decree for pre-emption.
5. In this petition, the judgment of the learned Additional District Judge has been called in question, whereby the suit of the petitioner was ordered to be dismissed.
6. Learned counsel for the petitioner, argued, that the suit relates to the interregnum period and during this period, it could be maintained under Islamic Law of Pre-emption and that the view taken by the learned Additional District Judge suffers from material illegality.
7. The sale pre-empted in this suit was effected on 20-4-1989 while the suit was filed on 5-8-1989.
In the plaint,, the petitioner claimed superior right of pre-emption on the grounds of being co- sharer in the Khata and common easement. In para. 3 of the plaint, the petitioner asserted that on gaining requisite knowledge of sale, he declared his superior right of pre-emption and expressed intentions to enforce the same. He claimed having made Talb-i--Muwathihat, immediately on acquisition of knowledge of sale. In para. 4 of the plaint it is claimed that after Talb-i-Muwathibat, the petitioner, alongwith the witnesses personally contacted respondent No. l and made Talab-i- Ishhad whereafter the suit was filed.
8. Admittedly, the suit was not filed under the Punjab Pre-emption Act, 1913, but it was filed under Islamic Law of Pre-emption. The suit related to the interregnum period, when there was no codified law of pre-emption. It is now settled that during this period, when there was no codified law of pre- emption, suit for pre-emption could be maintained in accordance with the principle of Islamic Law of Pre-emption, provided the Talbs which are integral and substantive part of Islamic Injunctions were made to enforce the right of pre- , emption. Reference can be made to the rule laid in Hazoor Bakhsh and 3 others v. Additional District and Sessions Judge, Rajanpur and another 1992 CLC 61, Mst. Safia Beguin v. Ibrahim and others PLD 1989 SC 314 and Haji Rana Shabbir Ahmad Khan v.
Government of Punjab Province PLD 1994 SC 1. The plaint showing, the suit having been filed on the ground of being co-sharer and common easement and claiming making of Talbs, the suit for pre- emption could be maintained during the interregnum period and it could not have been dismissed on the ground that there was no codified law. Although, for obtaining the decree, the petitioner will have to prove, by adducing evidence, in support of averments made in the plaint, that he made Talbs for enforcement of right of pre-emption strictly in accordance with the pre-requisite of Islamic Law of Pre-emption, yet the suit could not be dismissed at initial stage on assumption as to non-existence of the law of pre-emption. The dismissal of suit, on erroneous assumption, was, therefore, without lawful authority and jurisdiction.
9. For the reasons above, the judgment passed by the learned Additional District Judge in revision, suffer from legal infirmity and jurisdictional error and the same being violative of law of pre- emption, is declared to be ineffective. Consequently, this petition is allowed, the impugned judgment is set aside, and the case it remanded to the learned trial Court, for decision of the suit on merits, after recording evidence, in accordance with law. _
10. Parties shall appear before the learned trial Court on 28-11-1997. No. Order as to the cost.