Faqir Rehman's petitioner/plaintiff tiled suit for possession through pre-emption against respondents /defendants in the Court of learned Civil Judge, Swabi. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit in favour of petitioner/plaintiff vide judgment and decree, dated 31-3-1982. Being aggrieved of the said judgment and decree, the respondent filed appeal in the Court of learned District Judge, Swabi which was accepted and the suit of the petitioner/plaintiff was dismissed vide judgment and decree, dated 5-4-1984. The petitioner/plaintiff then tiled C.R. No. 238 of 1984 in this Court, which was dismissed vide judgment and decree, dated 11-3-1989. The petitioner/ plaintiff filed C.P.S.L.A.
No. 153-P of 1996 before the Hon'ble Supreme Court of Pakistan which was allowed and the case was remanded back to the trial Court vide judgment, dated 12-4-1990 with the direction to implead Azizur Rehman's as defendant. The petitioner/plaintiff filed amended plaint on 20-1-1992 in the Court of learned Civil Judge, but his suit was dismissed vide judgment and decree, dated 6-3-1994 for non-- fulfilment of requirements of section 13 of N.-W.F.P. Pre-emption Act of 1987. He filed appeal against the dismissal of his suit in the Court of District Judge, Swabi, but the same was also dismissed vide judgment and decree, dated 6-4-1995. The petitioner/ plaintiff has now assailed the judgments and decrees of the Courts below through revision petition in hand.
2. Mr. Muhammad Aman Khan, the learned counsel for the petitioner argued that the suit of the petitioner/plaintiff was originally decreed in his favour on 31-3-1982 long before judgment reported in Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and the principles laid down therein were not applicable to the case of the petitioner/plaintiff and his suit could not be dismissed under the provisions of N.-W.F.P. Pre-emption Act, 1987. The Courts below have failed to address themselves in accordance with the law applicable and the impugned judgments and decrees need reversal.
3. On the other hand Mian Hisamuddin, the learned counsel representing the respondents argued that as per subsection (3) of section 35 of the Pre-- emption Act, the suit was liable for dismissal because decree passed on 31-3-1982 in favour of petitioner/plaintiff had been set aside by the learned Appellate Curt vide judgment and decree, dated 5-4-1984. On the crucial date i.e. 31-7- 1986 mentioned in PLD 1986 SC 360 there was no decree in favour of the petitioner/plaintiff and the petitioner/ plaintiff had tiled an amended plaint before the trial Court on 20-1-1992, therefore, the provisions of section 13 of the N.-W.F.P. Pre-emption Act, 1987 were applicable to the case and has been rightly dismissed by the trial Court and the appeal filed by the petitioner was also properly dismissed by the learned District Judge, Swabi. The impugned judgments and decrees, therefore, do not require any interference by this Court.
4. I have heard the learned counsel for the parties and perused the record.
5. There is no denial of the fact that petitioner/plaintiff had instituted suit for possession through pre-emption of land measuring 30 Kanals situated at Mauza Kotha, Tehsil and District Swabi on 8- 3-1979, which was after contest decreed in his favour vide judgment and decree, dated 31-3-1982.
The respondents-defendants filed appeal in the Court of learned District Judge, Swabi, which was accepted vide judgment and decree, dated 5-4-1984. The questions which need determination in this case are (i) whether on 31-7-1986 there was any decree in existence in favour of petitioner/plaintiff; (ii) whether the dicta laid down in Said Kamal's case (PLD 1986 SC 360) would be applicable to the case in hand and after the remand of the case, by august Supreme Court of Pakistan in the year 1990, the suit would continue in accordance with the provisions of Pre-emption Act, 1950 or the provisions of Pre-emption Act, 1987 would be applicable to the case.
6. N.-W.F.P. Pre-emption Act (Act X of 1987), was promulgated with effect from 28-4-1987. With the promulgation of Act X of 1987 the old Pre-emption Act of 1950 stood repealed. Section 35 of the new Act deals with the effects of repeal of Pre-emption Act of 1950 which is reproduced hereunder for convenience:-- "35 Repeal.---(1) The North-West Frontier Province Pre-emption Act, 1050 (N.-W.F.P. Act XIV of 1950), is hereby repealed.
(2)In the cases and appeals filed under the Law referred to in subsection (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance, with the provisions thereof.
(3)All other cases and appeals not covered under subsection (2) and instituted under the law, referred to in subsection (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the Pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act."
7. Admittedly section 35 of the Act deals with the pending cases and appeal filed under the repealed law, however, it has drawn a distinction in cases in which decree has been passed before the enforcement of the new law, or for the purpose of the present controversy before 31-7-1986 and those cases which were pending before the trial Court on the said date .i.e. 31-7-1986 and in which decrees were hot yet passed. In the former cases further proceedings were to be taken under the repealed law while the latter cases are to lapse and suits of the pre-emptors are to be dismissed except those in which right of pre-emption is claimed under the provisions of this Act.
8. Interpretation of section 35 of N.-W.F.P. Pre-emption Act, 1987 was made by august Supreme Court of Pakistan in Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445) in which .
It was held:-- "While considering this question this Court observed 'this section envisages pendency of appeals and cases against the judgments and decrees which have become final And the question arose as to what is the true meaning of the word 'final'? After referring to the meaning assigned to the word 'final' and the meaning given to the expression 'final decision' in Black's Law Dictionary the conclusion reached was that the word 'final' in this section meant the 'judgment or, decision which terminates action in Court which renders it'. This word was understood in the same sense by this Court even in an earlier case (Rizvi v. Maqsood Ahmed PLD 1981 SC 612) and this Court had given a similar meaning to these words. It was said in that case: "An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open 'to challenge in appeal etc."
9. The words "judgment and decree passed by the Courts below have become final" employed in subsection (2) of section 39 of N.-W.F.P. Pre-emption Act, 1987, were also interpreted by this Court ,in Ali Bahadur and others v. Muhammad Sarwar and another (PLD 1993 Pesh. 157) it was held:-- "' judgments and decrees passed by the Courts have become final' employed in subsection (2) of section 35 of the New Act have been held to mean "those judgments and decrees wherein the suit of the pre-emptor ha, been decreed by the Courts rendering it". The word 'decree' was thus held to mean only the judgments and the decrees wherein the suit of the pre--emptor has been decreed and the dismissal of the pre-emptor's suit has been altogether excluded."
10. In Ghulam Rasool and 2 others v. Faiz Bakhsh (1992 SCMR 1328) when the suit of the plaintiff had been decreed ex parte on 17-7-1982 and the said decree was set aside by Appellate Court on 17-5- 1983, the august Supreme Court of Pakistan held:-- "The short point for discussion in this appeal is whether a pre-eruption 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. "
11. The same proposition came up before the august Supreme Court of Pakistan in Bahadur Khan v.
Muhammad Yousuf and another (1992 SCMR 2117) in which it was held:-- "On the touchstone of reasoning advanced in Rozi Khan's case, the decree passed in favour of pre- emptor before 1-8-1986 are protested 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."
12. In Rustam Khan and 6 others v. Muhammad Nasir and 3 others (1998 SCMR 1028) while dealing with similar situation, the august Supreme Court of Pakistan observed: "Similarly, in Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) certain questions were visualised for applicability of the previous law of pre-emption and out of those, questions Nos. 6 and 7 which are relevant for determination of the present controversy are reproduced:-- "(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 fn-um."
The answer to these questions was given in affirmative in the judgment. It is thus clear that on the basis of the dictum in the two judgments referred to above the decree of the trial Court passed on 24-4-1984 in this case can be termed as 'final' for the purpose of section 35 (2) of the new Pre- emption Act, irrespective of the fact that it was, subsequently, set aside by the High Court.
Therefore, section 35(2) of the new Pre-emption Act, would cover the case and as such all the subsequent proceedings in this case would be regulated by N.-W.F.P. Pre--emption Act, 1950. The High Court was. Therefore, correct in applying section 20 of the previous Pre-emption Act and dismissing the revision petition on the ground that the transfer by the predecessor of the appellants of his share in the disputed purchased property to a stranger would also deprive him of his pre-emptive right on the basis of the Doctrine of Sinker. This appeal is, therefore, dismissed with costs."
13. In the case in hand, suit was decreed in favour of the petitioner/plaintiff on 31-3-1982, but on appeal the said decree was set aside vide judgment and decree, dated 5-4-1984 by the learned District Judge, Swabi, therefore, drawing wisdom from the dicta laid down in Ghulam Rasool and 2 others v. Faiz Bakhsh (1992 SCMR 1328), Rozi Khan and others v. Syed Karim Shah and others (1992 SCMR 445), Bahadur Khan v. Muhammad Yousuf and another (1992 SCMR 2117), Taj Muhammad Khan v. Yaqoob Khan etc. 1996 MLD 1671 and E Rustam Khan and 6 others v. Muhammad Nasir and 3 others (1998 SCMR 1028) I have no hesitation to hold that subsection (2) of section 35 of N.-W.F.P.
Pre-emption Act, 1987 would cover the case in hand as such all the subsequent proceedings in this case would be regulated by N.-W.F.P. Pre-emption Act, 1950. The revision petition in hand is accepted, the impugned judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court with the direction to decide the same being an old case of 1979 within four months. Parties are directed to appear before the learned trial Court on 21-3-2002. The office is directed to ensure that the case tiles are sent back to the learned Court concerned before the date fixed. Parties shall bear their own costs.