' SAIDUZZAMAN SIDDIQUI, J.---The appellants' predecessor (Khan Muhammad Khan) instituted a pre-emption suit in respect of land measuring 61 Kanals 18, Marlas situated in Chak Uggo, Tehsil Gujranwala against respondent No,
1. The suit was decreed by the Civil Judge ex parte on 10-9- 1969. The ex parte decree was subsequently set aside by the District Judge in the year 1984 and case was remanded to the trial Court for fresh decision in accordance with law. After remand of the case, the Civil Judge dismissed the suit on merits by judgment and decree dated 31-7-1988 on the sole ground that no decree for preemption could be passed after 31-7-1986 in view of the decision of this Court in the case of Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) and Sardar Ali v. Muhammad Ali (PLD 1988 SC 287). The judgment and decree passed by the learned Civil Judge was upheld by the first Appellate Court as well as by the High Court. Leave was granted by this Court against the judgment of the High Court to consider the following contention:- - "(2) In support of this petition it is contended that after their suit has once been decreed, even though ex parte, there was no bar to a decree being passed in their favour even after 31-7-1986. In support of this contention reliance is being placed upon two judgments of this Court reported as Bahadur Khan v. Muhammad Yousaf (1992 SCM R 2117) and Ghulam Rasool v. Faiz Bakhsh (1992 SCM R 1328).
(3) The contention raised in support of this petition needs examination. Leave is granted. The interim order already made to continue during the pendency of the appeal."
We have heard the learned counsel for the parties at length.
2. The only question which requires consideration in this case is whether in view of setting aside of the ex parte decree, which was passed in favour of the appellants' predecessor on 10-9-1969, a suit for pre-emption could be decreed in his favour in view of the decision of this Court in the case of Said Kamal Shah (supra).
3. The learned counsel for the appellants contended that as the suit in favour of the appellants was decreed before the target date mentioned in Said Kamal Shah's case, namely, 31-7-1986, the appellants' predecessor was entitled to have the suit decided in accordance with law prevailing prior to that date. The learned counsel for the respondents on the other hand contended that the decree passed in favour of the appellants' predecessor on 10-9-1969 was an ex parte decree which was obtained by misrepresentation and fraud, and therefore, it was nullity in the eyes of law. The learned counsel for the respondents, accordingly, contended that passing of such a decree would not create any right in favour of the appellants so as to entitle them to have their suit decided in accordance with law prevailing before 31-7-1986. In the leave granting order, cases of Bahadur Khan v. Muhammad Yousaf (1992 SCM R 2117) and Ghulam Rasool v. Faiz Bakhsh (1992 SCM R 1328) are noted which have been relied upon by the learned counsel for the appellants. In Ghulam Rasool's case (supra), this Court while considering a similar contention as is raised before us in the above appeal, observed as follows:-- "The short point for discussion in this appeal is whether a pre-emption suit decree by the trial Court before 30-7-1986 could ultimately be decreed by a competent Court after the said date when the Federal Shariat Court struck down certain provisions of the different Provincial laws regarding pre- emption as being contrary to the Qur'an and the Sunnah. In Sardar Ali's case PLD 1988 SC 287 at 320 and 344 this Court answered the said question in the affirmative. In the instant case an ex parte decree was passed by the Court in favour of the appellants on 17-7-1982. In these circumstances, the suit could have proceeded after 31-7-1986 and decreed by a competent Court.
The view of learned Single Judge that because the ex parte decree dated 17-7-1982 was set aside by the Appellate Court on 17-5-1983, no decree by the trial Court deciding the suit existed before 31-7-1986 cannot be accepted. In these circumstances, following the rule laid down in Sardar Ali's case (supra) we have no hesitation in holding that the view of the learned Single Judge is not legally correct and deserves to be rectified."
' In Bahadur Khan's case (supra), while dealing with the effect of Said Kamal Shah's case on the decrees passed in favour of the pre-emptors before the target date i.e, 31-7-1986, the observations of this Court were as follows:-- "On the touchstone of reasoning advanced in Rozi Khan's case, the decrees passed in favour of pre-emptors before 1-8-1986 are protected from the effect of Said Kamal Shah's case and all the further proceedings in connection therewith are to be governed and decided under the provisions of the old Act (I of 1913). In the instant case, decree in favour of the pre-emptor, though ex parte, was passed on 18-7-1985 and as such the further proceedings for the setting aside thereof and the subsequent trial after its setting aside shall be governed by the Punjab Pre-emption Act of 1913 as if it had not been repealed.
' The learned counsel for the appellant argued that the decree passed on 18-7-1985 was ex parte and not equated with a decree passed in favour of the pre-emptor after contest by the vendees/defendants. We are afraid, the submission is not legally entertainable. There can be no difference between a decree passed after contest and a decree passed ex parte as both are decrees as defined in subsection (2) of section 2 of C.P.C. And are executable.'
In both the above cases, the question before this Court was whether, an ex parte decree passed in favour of a pre-emptor before the target date, 31-7-1986, was within the contemplation of the judgment of this Court in the case of Said Kamal Shah (supra), or not. The answer in both the cases by this Court was that such a decree was protected notwithstanding the fact that it was an ex parte decree.
4. The learned counsel for the respondents, on the other hand, contended that an ex parte decree obtained by fraud and misrepresentation, is not within the contemplation of Said kamal Shah's case (supra), which was clarified in Sardar Ali v. Muhammad Ali (supra) the learned counsel in support of his contention very vehemently relied on the following observations of Muhammad Afzal Zullah, J. (as he then was) in Sardar Ali's case (supra): "5. Some of the questions posed regarding the applicability of the previous laws of pre-emption are as follows:--
(1) Whether a pre-emption suit not decided by the trial Court before 31st July, 1986, could be decreed after the said date.
(2) Whether a plaintiff in a pre-emption suit having failed in the trial forum and having remained unsuccessful in obtaining a decree in his favour even in appeal, revision or writ petition before 31st of July, 1986, can be granted a decree by any of the higher forums where his case was pending on that date including the Supreme Court.
(3) Whether a plaintiff having failed to obtain a decree in the trial forum before 31-7-1986 and having challenged his failure in the higher forum, his case was remanded to lower forum where it was still pending without any decree in his favour till then, can be granted a decree for the first time.
(4) Whether a plaintiff having obtained a pre-emption decree in the trial forum before 31-7-1986 and a challenge to such a decree was pending before the Supreme Court or a lower forum in appeal, revision or writ petition, can (the decree-holder) be non-suited on the ground that the relevant law ceased to have effect on 31st July, 1986.
(5) Whether a plaintiff having failed in the trial forum had, in appeal or other proceedings in a higher forum, succeeded in obtaining a decree before 31st July, 1986, can be non-suited in the still higher forum including the Supreme Court, on the ground that the relevant law had ceased to have effect on 31st July, 1986.
(6) Whether a plaintiff having obtained a decree for pre-emption in the trial forum lost the case in a higher forum, when pressing his appeal, revision or writ petition, can defend the decree granted in his favour before 31st July, 1986, and seek its restoration.
(7) Whether a plaintiff having obtained a decree before 31st July, 1986, a higher forum remanded the case for fresh decision will be entitled to seek its restoration regardless of the fact whether the matter is pending before the trial or any higher forum.
(6) During the hearing it was agreed that if possible, these and other questions, which might arise in the present controversy should be answered, if not prohibited, by interpreting the relevant provisions of the Constitution with reference to the intention underlying the same. It is a salutary approach for more than one reasons. This Court has approved it and held so in the well-known case of Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457. Secondly, an absolutely new concept of Constitutional dispensation has been introduced which has to be understood and applied in its peculiar context. And lastly, the basis of this concept being the Islamic Law and Jurisprudence, other judicial principles, including those of interpretation, if relevant, would have to be seen under that light."
' The above observations relied by the learned counsel for the respondents are to be read alongwith the observations contained in para. 64 of the judgment in Sardar Ali's case (supra), which are as follows:-- "64. In the opening part of this judgement, we visulaised the various questions vis-a-vis situations which have arisen or might arise in connection with the present controversy. In the light of the discussion and view on the points involved, the answers to Questions Nos. 1 to 5 are in the negative, while Questions Nos. 6 and 7 are answered in the affirmative. These questions and answers would, in our view, resolve most of the controversies. However, if there is a different question, or any new situation, arises in any particular case, the same would be resolved by the forum concerned in accordance with the principles discussed in this judgment and those underlying the questions posed and answers already rendered."
5. We may observe that there is no finding by any of the Courts below that the ex parte decree, dated 10-9-1969 was obtained by the appellants' predecessor through fraud and misrepresentation. We are, therefore, not inclined to accept the contention of the learned counsel for the respondents that the decree in the above case was obtained by the appellants' predecessor by fraud or misrepresentation. Apart from it, the decree having been passed in favour of appellants' predecessor prior to 31-7-1986, mere fact that it was an ex parte decree which was set aside later, would not debar the appellants to have the case adjudicated in accordance with the law applicable before that date in view of the law declared by this Court in the case of Said Kamal Shah (supra), which was further explained in Sardar Ali's case (supra). The observations of Muhammad Afzal Zullah, J. (as he then was) in Sardar Ali's case (supra), relied by the learned counsel for the respondents did not lay down any law contrary what we have said above.
' For the aforesaid reasons, we accept this appeal, set aside the judgments and decrees of the Courts below and send the case back to the trial Court with the direction that the suit may be disposed of in accordance with the law within six months from the date of receipt of this judgment.
There will, however, be no order as to costs.