Through this writ petition the petitioners assail the order dated 2-3-199'1 passed by Additional District Judge, Sargodha. and restoration of order, dated 13-11-1990 passed by the Civil Judge 1st Class, Shahpur.
2. Brief facts of the case are that respondent No,1 purchased land measuring 28 Kanals out of Khewat No,56 as per Register Haqdaran Zameen for the year 1986-87, vide Mutation No,331, attested on 30-7-1988, for consideration of Rs,70,000. The petitioners filed a suit on 24-6-1989 for pre-emption of sale in the Court of Civil Judge at Shahpur on the ground that they were co-sharers and contiguous Owners. The suit was contested. Written statement was filed. Issues were framed.
Witnesses were examined-. On 14-7-1990 respondent No,1 moved an application for dismissal of the suit/rejection of the plaint on the ground that in view of the decision of the Shariat Appellate Bench of the Supreme Court there was no pre-emption law and the suit could not proceed. The learned Civil Judge dismissed the suit of the petitioners on 28-7-1990. Meanwhile the PunjabPre- emption Ordinance XVIII of 1990 was enforced so the petitioners tiled an application on 30-9-1990 for revival of the suit in view of section 36 of the Ordinance. This application was contested but the suit was revived by the learned trial Court vide order dated 13-11-1990. Respondent No,1 filed a revision petition against the order dated 13-11-1990 of the Civil Judge before the Additional District Judge who accepted the same, set aside the order dated 1341-1990 and rejected the application vide order dated 2-3-1991. This order has been challenged in the present writ petition.
3. The learned counsel for the petitioners argued that in fact Revisional Court has misinterpreted and misconstrued the provisions of section 1(3) and section 36 of Ordinance XVIII .of 1990.
According to him, the period of 60 days had to be counted for the purpose of application seeking revival of the suit from the date of commencement of the Ordinance No,XV IH of 1990 and not from the date the Ordinance was to take effect by virtue of section 13 of the Ordinance and therefore, the application filed. on 30-9-1990 was well within time.
4. I have given my conscious consideration to the facts of the case and the provisions of the Punjab Pre-emption Ordinance, 1990 (Ordinance No,XVIII of 1990). Admittedly, the respondent purchased the land in dispute vide Mutation No,331 dated 30-7-1988. The suit was filed on 24-6-1989. The Government of the Punjab promulgated the law on the subject of pre-emption, i,e, the Punjab Pre- eruption Ordinance, 1990 (Ordinance No,V of 1990 on 29th March. 1990, and since then the Ordinances promulgated one after the other, on the expiry of the period prescribed by Article 128 of the Constitution are:--
(i) The Punjab Pre-emption Ordinance, 1990 (Ordinance XII of 1990, Gazette, Extraordinary, 29th May, 1990).
(ii) The Punjab Pre-emption Ordinance, 1990 (Ordinance XVIII of 1990, Gazette, Extraordinary, 27th August, 1990).
(iii) The Punjab Pre-emption (Amendment) Ordinance, 1990 (Ordinance XXI of 1990, amending subsection (2) of section 36), the words "one year" substituted for the words two hundred forty days.
(iv) The Punjab Pre-emption Ordinance, 1990 (Ordinance XXVII of 1990, Gazette Extraordinary 26th November, 1990).
Ordinance at Nos,(i). (ii) and (iv) came into force respectively on the date on which the earlier Ordinance stood repealed under section 128 of the Constitution. Another feature worth noticing is that the additional provision was introduced by adding section 36 to Ordinance No,XVIII. The two Ordinances earlier brought on the Statute contain only 35 sections. The new section 36 reads as under:-- "36(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 during the period from 1st August, 1986 and 28th March, 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall be of no legal effect, and such suits on an application made by the aggrieved person within sixty days of the commencement of this Ordinance, shall subject to subsection (2), 'be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 31 in respect of the suits mentioned in subsection
(1) the period of limitation shall be two hundred and forty days and it shall be sufficient if the pre- emptor establishes that he had made Talh-i-Ishhad in the presence of two truthful witnesses."
It is pertinent to note that by Ordinance No,XXI of 1990 figures 240 days in subsection (2) of section 30 were substituted with the words "one year" and the amending provision came into force from the date of enforcement of the Ordinance No,XVIII of 1990. The question which requires determination is whether the decree passed by the Court dismissing the suit is of no legal effect in view of the provisions contained in section 36 of the Ordinance. The suits which are dismissed are liable to be revived subject to the provisions of subsection (2) and are to be tried afresh in accordance with law. The learned Additional District Judge while accepting the revision petition concluded:-- "In view of Article 128 of the Constitution of Pakistan, the Ordinance issued by the Governor will automatically stand repealed after the expiry of three months from its promulgation, if it is not presented before the Provincial Assembly. The Ordinance issued on 28-3-1990 was not presented before the Provincial Assembly or the continuance of original Ordinance XII of 1990 this Ordinance XVIV of 1990 was promulgated. In section 3 of this Ordinance it has clearly been laid down that it shall come into force at once and shall be deemed to take effect on the day the Punjab Pre- emption Ordinance (12 of 1990), stand repealed under section 128 of the Constitution except sections 27 and 29 which shall be deemed to have taken effect on and from 29th March, 1990."
In view of the provisions of section 36 of Ordinance XVIII of 1990 the limitation to tile application for restoration of the suit is 60 days and the 60 days will be counted from the date when this Ordinance will come into force and that date in the present suit is 28th June, 1990. Therefore, 60 days will expire on 27th August, 1990, and the application under section 36(2) of the Ordinance moved by the present petitioner for revival of the suit was not maintainable and the learned Civil Judge fell in error while interpreting the provisions of the Ordinance, which was corrected by the learned Additional District Judge while accepting the revision petition.
There is another aspect of the case that in absence of Talb-e-Ishhad the provisions of section 36 of the Pre-emption Ordinance will not at all be helpful for the petitioner to make an application under section 36(2) of the Ordinance. No doubt, the petitioner in para. 4 of the plaint had stated that he issued the notice to the vendee on 22-5-1989 and the learned counsel for the petitioner argued that he has made Talb-e, Ishhad to my mind this plea is not acceptable because when there is no Talb-e-Muathibat there is no question of Talb-e-Ishhad and this may not be helpful to the petitioner for restoration of his pre-emption suit. In case of Hazoor Bakhsh and 3 others v.
Additional District Judge, Lahore (1992 CLC 617) on a compromise between the parties the decree was maintained while interpreting section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 it was held:-- "Where right of pre-emption was claimed on those grounds which were available under the Ordinance XVIII of 1990, suit for pre-emption would be covered by section 36 of the Punjab Pre- emption Ordinance, 1990 and consent deuce passed in such a suit by the trial Court would not suffer from any illegality or - jurisdictional defect."
In the case of Hazoor Bakhsh (supra) the application under section 36(2) of the Ordinance for revival of the suit under Ordinance No, XVIII of 1990 was within time, but also there was a consent decree. But here in this case the application for revival of the suit under section 36(2) of the Ordinance No,XVIII has been contested being time-barred and that it is established that the petitioner had not fulfilled the requirements of Talbs.
In this view of the matter, the law enunciated in case of Muhammad Ismail v. Mst. Sakina Bibi (PLD 1991 Lah. 60) will be applicable. The application for revival of the suit has rightly been dismissed by the learned Additional District Judge in revision vide order dated 2-9-1991, which is not open to any exception. The learned Additional District Judge had the jurisdiction to decide the revision petition.
For what has been discussed above, this petition has no force. which is accordingly dismissed.