' Brief facts of the case are that the present petitioners filed a suit for preemption in the Court of A.C./Collector, Ahmadpur East claiming to have superior right of pre-emption as tenants of the suit land. The suit was instituted before the judgment announced by the Shariat Appellate Bench of the Supreme Court in Said Kamal's case declaring certain provisions of the Preemption Act, 1913 and some paras. Of M.L.R. 115 as repugnant to the injunctions of Islam. The A.C./Collector decided the case after 31st of July, 1986, the cut off date fixed by the Shariat Appellate Bench of the Supreme Court for enactment of consolidated law of pre-emption. The provisions of old law, according to the judgment of the Shariat Appellate Bench of the Supreme Court after 31-7-1986 ceased to have effect. The A.C./Collector dismissed the suit of the present petitioners on the ground that the provisions of Pre-emption Act, 1913 and MLR 115 regarding superior rights of pre-emption of tenants having been considered as repugnant to Islam according to the said decision, ceased to have effect after 31-7-1986. Faiz Bakhsh filed appeal against this order before the Commissioner who basing his opinion on the judgment of Lahore High Court reported in PLD 1987 Lahore 358 which held that decision of the Shariat Appellate Bench of supreme court had no effect on the suits, appeals, revisions pending before the crucial date of 31st July, 1986, remanded the case to Ac/Collector for decision afresh on merits. The AC/Collector vide his order, dated 27th February, 1988 decreed the suit in favour of the present petitioners. The petitioners as well as respondents filed appeals against the said order and decree of the A.C./Collector before the Commissioner, Bahawalpur Division, who vide his order, dated 23rd of June, 1988, set aside the order and decree passed by the lower Court. The impugned order mentions the judgment of the Supreme Court given in civil appeal C.P.S.L.A. No,469 of 1987 reported in PLD 1988 SC 291 as judge made law applicable to the case. The present revision petition has been filed against this order of the Commissioner.
2. The main ground taken by the petitioners is that the order of the Commissioner, dated 29th of October, 1987 by which the case was remanded to the A.C./Collector for decision afresh not having been challenged, had attained finality. The Commissioner vide his impugned order, dated 23rd of June, 1988 took a different view of the case and the order, therefore, tantamounts, to review of his earlier order dated 29th October, 1987. It is the contention of the learned counsel for the petitioners that the Commissioner is incompetent to order review of his earlier order without the permission of the Board of Revenue.
3. The learned counsel for the respondents has based his arguments on case laws. In this respect, he has cited:
(1) PLD 1988 SC 287
(2) 1990 SC 899
(4) 1993 SCMR 696
(5) 1987 MLD 2911.
4. In short, the points for determination are:--
(i) Whether the Commissioner holding the view in the first order that suits, appeals, revisions, etc. Instituted before 31st July, 1986 could be decided and decreed after 31st of July, 1986 and changing his view by another order was required under law to obtain permission of the Board of Revenue?
(ii) whether pre-emption suits although instituted before the 31st of July, 1986 could be decided by the Trial Court after the said date.
5. As regards the point at para. (i) above, suffice it to say that the impugned order dated 23-6-1988 was passed in appeal against the order of the A.C/Collector and in no way can be construed as review of the order of the same Court, dated 29-10-1987. The Commissioner was, 'therefore, not required to obtain permission of the Board of Revenue for review of his earlier order.
Notwithstanding this line of arguments, both the orders were passed on the score of judgments of the superior Courts. As is evident, after the decision of the Shariat Appellate Bench of the Supreme Court in many cases requiring interpretation of the decision, the Honourable High Courts and Supreme Court have passed pronouncements with varying views. The Commissioner based his judgment, dated 29th of October, 1987 on one authority and order dated 23rd of June, 1988 on another case law. In the instant case, the present petitioner's suit was dismissed and no judgment or decree was passed in their favour before the 31st of July.
1986.
6. There is a history of case laws on the subject. It is now a settled principle of law as reported in PLD 1994 Lahore 13, 1993 SCMR 696, NLR 1998 Civil 182 that suits even though filed before 31st of July, 1986 cannot be decided and decreed under the Pre-emption Act of 1913 or provisions of M.L.R. 115 declared vide the Shariat Appellate Bench of the Supreme Court to be repugnant of Islam. The most precise and elucidating pronouncement is reported in 1993 SCMR 696 wherein the Honourable Supreme Court, even though the earlier judgment of the Supreme Court reported in 1992 SCMR 1129 (Muhammad Sharif v. Muhammad Sharif) was in their view, has held that; we would accordingly reject the contention of the pre-emptors that even though their suits were not decreed before 31-7-1986 yet the decrees passed after that date stood saved by the provisions of section 34 (2), 'ibid'. It was held by the Honourable Supreme Court that the words "Judgment and decree" stated n section 34(2) of Pre-emption Act, 1991 referred to those judgments and decrees alone which had been passed in favour of the pre-emptors.
6. The matter now stands resolved in terms of many uniform decisions of the superior Court as mentioned in para.
6. Resultantly the revision petition has no force and is rejected.
7. The judgment in this case was reserved which now be conveyed to Additional Commissioners, District Collector and the parties.