This judgment shall dispose of writ petition bearing No,12481 of 1998 and Writ Petition No,12482 of 1998, as common questions are involved.
2. The petitioners in these cases purchased suit-land vide registered sale-deeds dated 2-11-1993 and 13-12-1993 respectively. On 27-3-1994, respondent No,1 in these cases tiled two civil suits for possession of suit property by pre-emption. The petitioners contested both the suit by filing written statements. Thereafter, they filed an application under Order VII rule 11, C.P.C. for rejection of the plaint on the ground that the plots purchased by them are located within Gujranwala Urban limits and as such in terms of section 2(a) of the Punjab Pre-emption Act, 1991 no right of pre-emption exists with reference to such a property. This application was contested by respondent No,1 in both the cases. The learned trial Court relying upon the judgment in the case of Haji Rana Muhammad Shabbir Ahmad Khan v Government of Punjab Province, Lahore (PLD 1994 SC 1) proceeded to hold that the said provision had been declared to be against the Injunctions of Islam and as such the plaint is not liable to be rejected. This was done vide an order dated 19-2-1995. In both the cases civil revision were filed and these were heard together by a learned Additional District Judge, Gujranwrla who proceeded to dismiss the same on 22-5-1996. The learned Additional District Judge proceeded to add that since the Federal Shariat Court had declared the said provision of law to be repugnant to the Injunctions of Islam on 30-5-1991, it will be deemed that the said provision of law cease to exist with effect from the said date. Thus the civil revisions were dismissed on 15-5-1996.
3. The petitioner, present in Court, in person prays that the case be examined and the impugned orders be set aside. No one has turned up for respondent No,1 in both these cases who is represented by Mian Sarfraz-ul-Hassan. Advocate whose name stands duly listed in the cause list for today but no one has turned up despite several calls. Respondent No,1. accordingly is proceeded against ex parte.
4. An examination of the impugned order reveals that there was no dispute that the property subject-matter of the two suits was located within the limits of Municipal Corporation.
Gunjranwala. However, the prayer made by the petitioners was resisted on the ground that section 2(a) of the Punjab Pre-emption Act, 1991, defining immovable property and excluding immovable property located in the urban area or within cantonment limits from the said definition, has been declared to be repugnant to the Injunctions of Islam. Now sale in these cases had taken place, respectively, on 2-11-1993 and 13-12-1993. No gain saying the fact that a pre-emptor in order to succeed must retain right of pre-emption on the three crucial dates and one of the said dates is the date of the sale. Reference may be made to the case of Hasil and another v. Karam Hussain Shah and others (1995 SCM R 1385). Now it has to be seen as to whether in the said admitted background respondent No,1, in these cases was vested with a superior right of preemption on the date the sale in these cases took place.
5. The right of pre-emption has been defined in section 5 of the Punjab Preemption Act, 1991, to mean a right to acquire by purchase "immovable property" in preference to other person by reason of such right. Section 5 lays down that a right of preemption was to arise in case of sale of immovable property. Now in view of the said definition of immovable property contained in section 2(a) of the said Act, no right of pre-emption was to arise in case of sale of immovable property located in an urban area. Thus the respondent on the said date when the sale of the property took place had no right of pre-emption. as no right was to arise in respect of the sale of the said property.
6. Coming to the impugned orders of the respondents Nos,2 and 3 in these cases. Whereas the trial Court has proceeded to hold with reference to the said case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1) that the said provision excluding the urban property from the definition of immovable property is repugnant to the Injunctions of Islam. the learned Additional District Judge has gone further by observing that the Federal Shariat Court had so declared the said provision repugnant to the Injunctions of Islam on 30-5-1991. Both the learned Courts below appear to be oblivious of the Constitutional provision governing the matter. Under Article 203-D of the Constitution the learned Federal Shariat Court has to specify the date on which the decision was to take effect. This date was 30-5-1991. Now proviso to Article 203-D of the Constitution lays down that no such decision shall be deemed to take effect before the expiry of the period within which an appeal therefrom is to be preferred to the Supreme Court or where an appeal has been so preferred before the disposal of such an appeal. Now it is a matter of record that the said decision of the learned Shariat Court was appealed against before the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan and the matter was decided vide a judgment reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province. Lahore (PLD 1994 SC 1). Thus the judgment of the learned Federal Shariat Court never took effect till such time that the said appeal was decided. Now in the said judgment the Shariat Appellate Bench specified 31-12-1993 as the date on which the judgment is to take effect.
This date was specified in accordance with the provision of Article 203-D(2) of the Constitution.
Thus the judgment ultimately took effect on 31-12-1993. The result is that on the date both the sales in these cases, the judgment had not taken effect and the said provision of law had not ceased to take effect and as such the respondent No, 1 in these two cases had no right of pre-emption on the said date, has no right was to arise in respect of the sale of the said property. The impugned orders of respondents Nos,2 and 3 are without lawful authority and are declared as such.
7. This writ petition accordingly is allowed and the impugned orders dated 45-5-1996 of the learned Additional District Judge. Gujranwala and 19-2-1995 of the learned trial Court/respondent No,2 are set aside. The result would he that plaints in both these two cases shall stand rejected.