' Punjab Pre-emption Act, 1913 was in full operation until the judgment of the Supreme Court in well- known case of Government of N.-W.F.P. Through secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and its later pronouncement in the case of Sardar Ali and others v.
Muhammad Ali and others (PLD 1988 SC 287). The Supreme Court further declared that no decree in favour of the preemptor could be passed after 31st of July, 1986. It was also held that suits instituted under the Punjab Pre-emption Act, 1913 in which decree has been passed before 31-7- 1926, the cut off date, proceeding in such suits will be held according to Punjab Pre-emption Act, 1913. 1913 Act was rendered unworkable because of the pronouncement in the Said Kamal's case.
From 1986 till 1991 when Punjab Ordinance IX of 1991 was enforced, there did not exist any statutory law of Pre-emption in Punjab. Ordinance IX of 1991 was subsequently converted into the Punjab Pre- emption Act, 1991. The law-maker was conscious of the fate of suit instituted during the vacuum period i,e, roughly from 1986 to 1991 when there was no statutory law. With a view to provide some relief to such plaintiffs, whose suits were filed and dismissed during the vacuum period, the lawmaker added section 35 in the Act. As the same is relevant for decision of the revision. It is reproduced:-- ' Saving.---(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 between the 1st day of August, 1986 and the 28th March, 1990, (both days inclusive) in which the right of pre-emption was claimed as is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act shall subject to subsection (2) be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made `Talb-I-Ishhad' in the presence of two truthful witnesses.
2. In the present civil revision the suit was filed on 20-10-1988. It was contested by filing written statement. Issues were framed. On 10-10-1989 the Court received the documentary evidence of the plaintiffs and adjourned the case to 29-10-1989 for evidence of the defendant. While closing the evidence, learned counsel for the plaintiffs reserved to the right to produce rebuttal evidence as also to examine one of the plaintiffs. The case kept on adjourning and ultimately on 29-1-1990 four witnesses of the defendant were produced and their statements recorded. The case was adjourned as per request of the defendant to file documents. Documents were ultimately filed on 18-3-1990.And it was on the said date that the Court adjourned the case to 8-5-1990 for rebuttal evidence and statement of the plaintiffs. On 8-5-1990 the evidence of the plaintiffs was not available and the case was adjourned to 13-6-1990 on condition of payment of Rs,40 as costs. On 13-6-1990 the Court adjourned the case to 21-6-1990 for arguments on the maintainability of the suit. On 21-6-1990 the Court dismissed the suit of the plaintiffs.
3. With the enforcement of Punjab Pre-emption Ordinance IX of 1991, on the application of the plaintiffs, the suit was restored on 28-5-1991. After restoring it, the Court adjourned the same to 8- 6-1991. On this date, the Court noted that an issue about performance of `Talbs' exists but no evidence on the same was produced nor any applications has been made for additional evidence.
The Court, therefore, treated Issue No,5 as preliminary and on the same date dismissed the suit holding that the plaintiffs have not been able to prove the performance of `Talbs'. This decree was challenged in appeal but the appeal itself was dismissed on 30-3-1992.
4. In this revision, it is contended that the trial Court acted illegally in refusing to allow the petitioners to lead evidence, after the suit was revived under section 36 of the Punjab Pre-emption Ordinance, 1990. It is stated that the petitioners have reserved the right to lead rebuttal evidence and to also make a statement in affirmative but the learned trial Court wrongly held that petitioners were provided opportunity to lead evidence and they did not. It is also argued that no statutory period for Talb-i-Ishhad' existed at the time of sale transaction as well as institution of suit (this being vacuum period) and the Courts have wrongly condemned the petitioners on the ground that no statutory notice was served. It is urged that statute came much later. Learned counsel for the respondent on the other hand supported the impugned judgments by arguing that the proof of `Talbs' could only take place in affirmative evidence and the trial Court acted rightly in holding that petitioners have not led any evidence on this issue. Learned counsel for the petitioners has also pointed out that petitioners' application for additional evidence has not been adverted to and decided by the appellate Court.
5. In interpreting section 35 of the Act or 36 of the Ordinance IX of 1991 the background of the problem has to be kept in view. As has been noted in the earlier part of this judgment, the Punjab Pre-emption Act, 1913 suffered a severe jolt when the Supreme Court declared important provisions of the Act as un-Islamic in Said Kamal's case (supra). In Sardar Ali's case the Supreme Court laid down a cut off date i,e, 31st of July, 1986 and directed that the suit filed under the provisions of Act 1913 will be decided in accordance with the said Act if before 31-7-1986 a decree had been passed in such suits. The Court indicated that the future suits could be filed under the provisions of Islamic Law until the framing of the new law by the relevant legislature. Punjab Pre-emption Ordinance, 1991 which was converted into an Act in the same year has been enacted to give effect to the judgment of the Supreme Court in Said Kamal's case (supra). It was felt that pre-emptors whose cases were filed and dismissed between 1-8-1986 and March 1990, had suffered badly, due to absence of statutory law. In order to provide relief to the affected party, section 36 in the Ordinance and section 35 in the Act was introduced. In substance, this provision provided for revival of suits dismissed between 1-8-1986 and 28-3-1990 both dates inclusive, under certain condition noted therein. All such revived suits were required to be decided afresh. The fate of this revision depends upon the determination, of the true import of this expression i,e, decided afresh.
6. The term decided afresh in the context of background noted above has to be given liberal interpretation. In other words, an interpretation which would provide for decision of cases on merits.
The terms will also be interpreted keeping in view the facts and circumstances of each case. For instance if a suit was dismissed at the earliest stage without inviting written statement, the Court will have to start from that stage and invite written statement. In other words normally the Court will recommence the proceedings from the stage at which the revived suit was dismissed. In this case, as noted above, suit was dismissed on 21-6-1990 and at that time the suit was at the stage of recording rebuttal evidence of the plaintiffs and the statement of the plaintiffs. It was revived on 28-5-1991 under the provisions of Punjab Pre-emption Ordinance/Act, 1991 and the trial Court fixed 8-6-1991 for arguments as to further progress of the suit. On 8-6-1991 the Court treated Issue No,5 (retalb) as preliminary and finding that no evidence has been led on this issue nor application of additional evidence has been made, dismissed the suit. In passing this order, the Court ignored that before dismissal on 21-6-1990, it itself had allowed the plaintiffs to produce evidence in rebuttal as also to examine the plaintiffs. In order to ensure that the case was "decided afresh" as ordained by section 35 of the Punjab Pre-emption Act, 1991 (or section 36 of the Pre-emption Ordinance), the Court ought- to have taken notice of the order, dated 18-3-1990 on the file and must have fixed the case for rebuttal evidence and the statement of the plaintiffs. Its failure to do so is illegal. The manner in which the trial Court has proceeded to decide the suit is violative of the command to the effect that suit shall be decided afresh.
7. In the light of the above finding, I am not inclined to discuss and decide the other points touching the merits of the case, as clearly in accordance with the above finding, the suit has to be remanded for decision afresh. Anything said on the merits of the question of "talbs" etc. Is likely to prejudice the trial Court.
8. For the above reasons, I accept this revision and hold that the impugned judgments and decrees have been passed illegally in exercise of respective jurisdiction by the two Courts. After setting aside the decree, the suit is remanded to the trial Court to be decided in accordance with law and in the light of the observations and findings of this judgment. As the point involved and decided seems to be of first impression, the parties are left to bear their own costs.