PLJ 1987 Lahore 1

(Multan Beach]
Prtxt ni : MOHAMMAD MUNIR KHAN, .1 KHAN MUHAMMAD and 3 Others
Appellants
versus
GHULAM RASOOL and 4 OthersRespondents
Regular Second Appeal No. 100 of 1986, heard on 1-12-1986
( i ) Civil Procedure Code. 1908 (V of 1908}--
---- S l(;0-~Second appealinterference inCourts below applying con scious rr.ir.ci to teic-v;<r.t evidence by
giving cogent reasons in support of .oiK. iusion^ ai rjvcd at by themFindings on various issues also not suffering
from non-reading or misreadi ng of any material evidence Evident:; led on i ssues appreciated by l ower courts
in accordance wi th law and case-law laid down by superior CourtsHeld : No e xc e pt i on t o be t a ke n t o
i mpugne d j udgme nt a nd de c r e e s .
[Pp. 17 & igj X
( i i ) Civil Procedure Code, 1908 (V of 1908)--
-------- 0. VI I , R. 11---Plaint - Rejection ofExtraneous material Rel evancy ofHel d : Materi al forei gn
to pl ai nt not to be taken i nto account for appl i cati on of O. VII, R. 11, CPC, [P. 16]S
(Hi) Cifi! P/ocedure Code, 1908 (V of 1908}
-------- O. V|] , R. i ! -- Pl ai nt...... Rej ecti on of~Gr ounds of-Hel d : Rul e 11 of O. VIi, CPC not to be stretched to
include therein grounds of non-mai ntai nability of suit on pica of ri ght having ceased to exist duri ng pendency of
sui t. [P. 17JU
Civil Procedure Code, 1908 (V of 1908)
O. Vll, R, 11 Plaint Rejection ofPre-emption caseGround in-- RiglH of pre-emptor becoming extinct
duri ng pendency of suit Held : Term.s "barred hy law", -' bad in law' ' "unenforceable under law" and
"mefi erti ve under !aw'
:
being not synonymous, pl aint cogni.zancc of which not specifically bailed by law not to
be rejected OB gr cuod of r i ght of pr e- emptor havi ng become ext i nct duri ng pendency of suitSuch suit
pending or crucial day, however, to be competently dismissed on ground of its non-maintainability or (on ground
of) pre emptor having lost his preferential pre-emptive right before passing of decree in his favour. [P. 17jV
(v) Civil Procedure Code, 1908 (V of 1908)
------ O. VII, R. IS (d) PlaintRejection ofSuit "barred by law" Effect ofHeld : Words "suit appears to
be barred by law" used in rule 1! of O. VII, CPC to contemplate only those suits cognizance or trial whereof already
specifically barred by law cr provisions of law Held further : Fact of right having been taken away during
pendency of suit not to be operate as legal bar to cognizance or trial of suit. [P, HJT
(vi) Constitution of Pakistan, 1973
------ Arts. 203A, 203D, z03F, 203GG & 264 Law repugnant to Injunc tions of IslamDeclaration regarding
Pending proceedings Effect onProvisions of Chapter 3A of Constitution overriding other provisions of
ConstitutionHeld : Art. 264 of Constitution not to apply to judgment of Shariat Appellate Bench of Supreme
Court to give life to pending proceedings. [P. 13]G
(tii) Constitution of Pakistan, 1973
------ Arts. 20.-D Pre-emption law Repugnancy of to Injunctions of IslamDeclaration regardingEffect
ofJudgment pronounced by Sbariat Appellate Bench of supreme Court under jurisdiction conferred by
Constitution declaring certain provisions of Pre emption Act and Land Reforms Regulations repugnant to
Injunctions of IslamSuch provisions of law, however, not repealed through legislationHeld : Provisions of
law declared to be repugnant to Injunctions of Is lam (though remaini ng on statute book, same) to become
ineffective and unenforceable on crucial date.
[P. 14]K.
(viii) Constitution of Pakistan, 1973
------ Art. 203DPre-emption law Repugnancy of Injunctions of IslamDeclaration regardingEffect
ofShariat Appellate Bench of Supreme Court finding certain provisions of Land Reforms Regulation, 1972 and
Punjab Pre-emption Act, 1913 repugnant to Injunctions of IslamHeld : Such provisions having become void and
ineffective (on crucial date), superior pre-emptive right declared as repugnant to Injunctions of Islam not to be
enforced by granting decree in favour of pre-emptors claiming superior right on basis of those provisions of law
in pending suits and appeals filed by unsuccessful pre-emptors against dismissal of their suits Cases in which
decree already obtained by pre-emptor prior to crucial date, however, to be exception to such rule, [P. 14]O
(ix) Constitution of Pakistan, 1973
___ Art. 203DPre-emption lawRepugnancy of to Injunctions of IslamDeclaration regardingEffect
ofPreferential pre-emptive right possessed by certain categories of pre-emptors becoming void, ineffective and
extinct on crucial date fixed by Shariat Appellate Bench of Supreme CourtHeld ; Plaintiffs whose suits not
decreed before such date to be non-suited while institution of suits to enforce r i ght of pr e-empt i on on basi s of
provi si ons of l aw decl ared t o be repugnant t o Inj unct i ons of Is l am t o be barred.[P. 15JQ
PLJ 1985 SC 380 ; PLJ 1984 SC 320 ; PLD 1961 SC 69 ; 1982 CLC 2663 & NLR 1980 Civil (Lah.) 61 rel.
(x) Constitution of Pakistan, 1973
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Art. 203DShariat Appellate Bench of Supreme CourtJudgment (reported as PLJ I96 SC 5' /6)Effect
ofHeld : Judgment of Shariat Appellate Bench having become effective, provisions of para. 25 (3) (d) of Land
Reforms Regulation 1972 as well as provisions of S. 15 [except clause (b) fourthly] of Punjab Pre-emption Act
19t3 to cease to have effect from 31-7-1986Such judgment to be binding on all courts in Pakistan and to affect
suits and appeals filed by unsuccessful pre-emptors against dismissal of suitsDecree granted before crucial date,
however, to be immuned subj ect to merits of caseLaw of limitation to ext ent of its havi ng been found and
declared repugnant to Injunctions of Islam also ccaie to have effect on crucial dateAdditional preferential
pre-emptory rights declared by judgment being not codified law same not to be enforcedTrial Court also not to
reject plaint under O. VII, R. 11 CPC by reason of judgment. [P. 17 ]W
(xi) Constitution of Pakistan, 1973
------ Arts. 203D & 2G3FSbariat Appellate Bench of Supreme Court- Decision ofNature ofHeld :
Decision of Shariat Appellate Bench of Supreme Court ( i n declaring nature of provisions of Pre emption Act
and Land Reforms Regulation, 1972 as void owing to their repugnancy to Injunctions of Islam) to be
obviously declaratory (in natire) [P. 14JL
PLJ 1981 Lah, 519 rel.
(xii) Constitution of Pakistan, 1973
------ Arts 203D, 203F, 203DD & 189-Pre-emption lawRepugnancy of to Injunctions of IslamDeclaration
regardingEffect ofRight to pre-empt conferred on certain categories of persons by Shariat Appillate Bench of
Supreme Court not (so far) brought on statute book through legislationHeld : Declaration of right in such cases
not to be regarded as codifiled law of country, so as to be enforcible under law. [P. I6]R
(xiii) Constitution of Pakistan, 1973
Arts, 203D, 203F, 203GG & 189-Pre-emption lawRepugnancy of to Injunctions of IslamDeclaration
regardingEffect ofHeld: Right of repeal being inherent in legislation alone, any change of law otherwise than
by legislation not to constitute "repeal" so as to protect any right, privilege, obligaeion or liability acquired, accrued
or incurred under Punjab Pre-emption Act, 1913 or previous operation of provisions of law declared as
repugnant to Injunctions of Islam or anythi ng duly done or suffered ihereundcr before crucial dat e and al so
conti nuat ion of sui t pendi ng on t hat dat e. [P. 12JF
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PLD 1964 SC 673 ; PLD 1964 Dae, 795 : PLD 195? Lab. 853 : PLD 1959 SC (Pik.) 387 & PLJ 1974 Lah.
565 ref.
(xi?) Constitution of Pakistan, 1973
------ Arts. 203GG & 189Sharial Appellate Bench of Supreme Court- Judgment ofBinding nature ofHeld
: Judgment of Sharist Appeilate Bench of Supreme Gnat being very much binding not onh- on High Court and
all courts subodiM&re to it but alt.? en a l l oxhtr courts in Pakistan by virtue of Articles 203GG & 189 of
Constitution, consequences ensuing therefrom to be accepted Without questioning judgment in any manner, [P.
12]A
PLJ 1986 SC 220
fe
j.
(xv) Constitution of Pakistan, 1973
---- Arts, 263 & 203D Lws~-Coiitinuauce in fores ofFrinciplf regardingDeparture from Wno'ie of
Statute Book ('existing at time of enforcement of Constitution) preserved and allowed t : hold field until repealed or
amended by due process of legislationHeld: Clear departure from manner recognised by Art. 268 having been
made under Ar t . 203D of Const i tut ion, Federal Shanat Court and Shariat Appellate Bench of Supreme Court
to be empowered to declare any law or provisions of law as repugnant to Injunctions of Islam, [P. 14]J
(xfi) Law
---- Effect ofHeld : Law unless recalled by legislation to remain on statute book but sometimes cease to have
effect for various reaions. [P. 13]H
PLD 1965 Dae. 348 & PLD 1980 Pssb. 154 ref.
(xvli) Pre-emption
Law ofPeculiar feature ofHeld: Preferential right to be required to be possessed by pre-emptor not only at
time of sale but also both on date of suit and date of decree in bi s favour.
[P. 14]N
(xfiii) Pre-emption
------- Right ofRight (already) successfully asserted (before civil court) Held: Pre-cmptor having become full
owner superior right not to be required by him to be retained after decree in his favour or during pendency of appeal,
second appeal and revision filed by vendee/ defendant. [P. U]P
PLD 1961 SC 69 ref.
(xvir) Words & Phrases
------- "Cease"Meaning ofHeld : Meaning of words "cease" most often to suggest abrupt stopping. [P.
12]E
(xx) Words & Phrases
----- "Cease"Meaning ofHeld : Word cease to carry specific interpretation of total extinction. [P.
14]M
(xxi) Wordi & Phrtset
------- "Ex pott facto'
1
Meaning of. [P. 12JC
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Words & Phrases
"Effect"Meaning of. [P. 12'ji->
(win) Wards & Phrasei
"Repeai"Meaning of. [P. 12J8

Sh. Ziauddin Ahmad Qamar, Advocate for Appellant.
Ch, Muhammad Jehangir Arshad, Advocate for Respondents.
Pfr Rafiuddin Shah, Mirza Manzoor Ahmed & Mr. Kiaz Anvar, Advocates as amici-curioe,
Dates of hearirg
:
4. 1;' 22 to 2&-U-i936 & 1-12-19S6.
Ji.'PGMlN'l
Muhamad Rafiq and others, Sold agricultural land measuring 19 kanah and 12 mar lax situated in vi'Jage
Qabula I'ehsil Pakpattan, Distr.'ct Sahiwal, to K,han Muhammad, Muhamo^.j Din aad Muhammad Ibrahim, defen-
dants/appellants for ostensible price of Rs. 22, 050;- and mutation of sale was attested on 29-4-1974. On
24-4-1975, NazarDm deceased, father of Ghulam Rasoo! and 4 others respondents filed suit for possession by pre-
emption against (Chin Muhammad and others, vendees, in the court of Civil Judge, Pakpattan, claiming
superior right on the basis of being real uncle of the vendors and co-sharer in the estate as well. It was also
averred in the plaint that a sum of Rs. 9800;- only was bonafide fixed and actually paid as sale price of the suit
land hat to defeat the pre-emptive right it was fictitiously shown as Rs. 22.050/- in the mutation. The suit was
resisted whereon 6 issue., were framed The trisl Court vide judgment tnd decree dated 20 7-1978 w. i i l e deciding
issues other than issue No 4 against the vendees/appellants, decreed the suit subject to tha payment of Rs.
22.050/-. Feeling aggrieved thereby, the defend.Uits/appdlaats filed appeal which was entrusted to learned
Admnonai Diiirict Judge who vide his judgment and decree dated 10-3-1980 remanded back the case to the trial
Court directing that ;
"an issue in terms of preliminary objection pt'u? I contained in the written statement be framed and the same bs
decided after affording opportunities to produce their respective evidence. The findings of the learned trial Judge
oa issues No. 1 to 6 are maintained for the time being:. The learned trial Judge shall give fresh finding on
issue No. 7 according to his findings on the issue of court-fee. It is made clear that the parties caa agitate and
contest issues No. 1 to 6 if desires in the appeal preferred after fresh decision of the suit/'
On remand, the learned trial Judge framed additions! issue No. 1.4, follows :
"whether the suit is under valued for the purpose of Court fee and jurisdiction, if so, what is its correct valuation
and to what effect ?"
On 17-10-1984, the learned trial Judge decided this issue against the defea-dants/appellants and again decreed the s?l
The appeal filed by the defendants/appellants against this judgment and decree failed on 3l-?-l!'8<, hence this
Regular Second Appeal. 2. Sh. Zia-ud-Din Ahmad Qamar, t he l earned counsel for t he appellant has
challenged the findings of the courts below on issues No. 1, 2, 3 & 6, which are as under :
Issues :
(1) "Is the suit barred by time ? OPD.
(1A) Whether the suit is under valued for the purposes of court fee and jurisdiction, if so what is its correct
valuation and to what effect ?
(2) Hai the plaintiff waived his right ? OPP.
(3) Have the defendants incurred Rs, 10,410;'- on the improve ments of the suit land ? OPD,
(4) Is the plaintiff equipped with superior title to pre-emption? OPP.
Challenging the findings of the Courts below on issues No. 1, 2, & 3, the learned counsel submitted that the
same surfer from mia-r:adiag and mis-appreciation of relevant evidence in that on 21-4-1974 not only the
receipt Ex. D 1 with regard to the payment of sale price was executed by the vendors and report with
regard to the transaction of sale of the suit land in favour of vendees/appellants was entered in 'Roznamcha
WaqiatV but also the physical possession of the suit land was delivered to them and as such, the suit which was
filed on 24-4-1974 was barred by time ; that in the same set of circumstances another suit filed by the same
pre-emptor against Riaz Ahmad and others, pre-empting different sales made on 21-4-1974. mutation whereof
was attested on 29-41974, was dismissed by the trial judge ; that the evidence led on issues relating to
waiver and impovements was not appreciated in its trus perspective and that the reasons given by the courts
below in support of their findings on the aforesaid issues are flimsy, farfetched and unconvincing. As far
issue No, 6 relating to the superior right of Nazar Din plaintiff to pre-empt the sale attested on
29-4-1974 on the grounds of being Yakjaddi and co-owner in the estate, the learned counsel referred to
the judgment of the Shariat Aooellate Bench of the Supreme Court reported as 'Government of NWF
P v. Said Kama! Shah" (PLJ 1986 SC 576), herinafter to be referred as "the judgment'*, to contend that the
alleged superior right of plamtiff/pre-emptor has been lost and taken away through the judgment before the
action initiated on the basis of sale, the subject matter of the suit, could attain finality, the respondent/pre-
emptor could not claim superior right of preemption and his suit meritted dismissal on 31-7-1986 when the
appeal was decided by the laarned District Judge ; that in any case, the preferential right of plaintiff having
been lost and taken away pursuant to the judgment during the pendency of appeal/second appeal, the decree
granted by the trial Court on the basis of being Yakjaddi was DO more sustainable. Coatrarily the
learned counsel for the respondent maintained that since the pre-emptor had successfully obtained the decree
for possession by preemption before the judgment became effective on 31-7-19&6 (hereinafter called "the
crucial date"), therefore, his preferential right having been merged in the decree of the Court it would
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henceforth be regarded as a source of right for the decree holder, such a decree, therefore, calls for no
interference on the ground that the judgment had taken away the right of the plaintiff to pre-empt the sale.
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3. Si nce the question posed for determination before this Court relates to the assessment of legal effect of
the judgment on sales, suits, appeals, second appeals, revisions and writ petitions affected/filed/pending before, on or
after the crucial date and is not only of public importance but also involves interpretation of constitution and
statutory law, so I requested Pir Rafi-ud-Din Shah, Mirza Manzoor Ahmad and Mr. Riaz Anwar, the learned Senior
Advocates to assist the Court as ami cm curias in resolving following questions :
(i) Whether or not the judgment has rendered clause (iii) (d) of para No. 25 of MLR-115 and section 15 (except
clause (b) fourthly relating to the right of co-sharers) of the Punjab Pre-emption Act as inoperative after 31-7-198&
?
(//) What is the legal status of the judgment ?
(i i i ) Whet her or not t he j udgment i s repeal / i mpl i ed repeal of clause (iii) (d) of para No. 25 of MLR-J15
and section 15 (except clause (b) fourthly) of the Punjab Pre-emption Act within the meani ng of sect ions 6 and
4 of General Clauses Act s aod Article 264 of the Constitution of Islamic Republic of Pakistan, 1973,
hereinafter called as "the Constitution" ?
(/v) Whether or not the judgment is retrospective in effect so as to hit the sale completed before the crucial date
and also of right of pre-emption claimed on the basis of para No. 25 of clause (iii) (d) of MLR-115 and section 15
(except clause (b) fourthly) of the Punj ab Pre-emption Act, although no amendment in the Preemption Act so as
to apply the tuie laid therein with retrospective effect has been made so far ?
(v) What is the effect of the judgment on the continuity of the suit as a result of right having accrued earlier ?
(v/) What is the effect of the judgment on appeal filed by vendee/ defendant against the judgment and decree in
favour of pre emptor pending decision on the crucial date ?
(v//) What is the effect of the judgment on appeal filed by the plaintiff/ pre-emptor against dismissal of his suit pending
decision on the crucial date ?
(viii) Whether the judgment has the effect of conferring right to preempt on the basis of being ' Moheef and
neighbour, if so whether the same is enforceable under the law although it has not been brought on t he Punj ab
Pre-empt i on Act t hrough proper legislation ?
(ix) What is the effect of the judgment on the question of limitation for filing Pre-emption suit ?
(x) Whether the plaint of the pendi ng suits could/can be rejected on the basis of judgment ?
Pir Rafi-ud-Din Shah, the learned counsel argued for the proposition that the judgment was retrospective in
effect. He maintained that the judgment enjoys a declaratory status ; that it is not repeal/implied repeal of the
provisions of law declared therein as repugnant to the injunction of Islam ; that the appellate as well as a Court
exercising the revi sional powers can take into consideration subsequent events including any change in the law
because on filing appeal, the entire matter becomes re-opened and sub judice and has to be decided accordi ng
to law prevailing at the time of appeal and that ones revision petition is admitted, the entire procjedings
subject to the scope and limitation prescribed in Section 115 of the Civil Procedure Code are re-opaned for
examination and the new aspect of law will date back to the in: eptioa of the Punj ab Pre-empt ion Act. Mir/a
Manzoor Ahmad, the learned counsel is of the view that since no specific date qn which the decision of the
Couri would become effective has been state'd in the judgment, therefore, the provisions of law declared as
repugnant to the Inj unction of Islam hav; not become ineffective and the lavv remains as it was before
31-7-1986. Kaawar Akhtar AH, the learned counsel adopted the arguments addressed by Pir RaiiMid-Din Shah.
Mr. M Jehangir Arshad, the learned counsel for the respondents argued for ths propositions taut unl ess the
Punjab Pre-emption Act is amended so as to appl y the rul; hi d do.vn in the judgment war; retrospective sifsct,
it will noi .'lil:^-. the a. t i i ..
r
aich was complete bifop ths cruciajdate and will also n ot a V; ; t rr- fnjim
i*!sMllid oy pre-emptor o;! till?" ffa
1
sTs' '6" (' "'t h o s provisions of i .i w HI pi i i j i ng case, inasmuch as, the judgment
being a "repeal" of th>s; provisions of law, does not affect the previous operation of aiv enic' .rnj . u or repiii :'
anything duly done or sniferecl thereunder and -.vill ais. not a!f-;ct auy right, privilege, obligation or I;a'>iiity
a-cjuired, accrued yr incurred unjc-f thoii provisions of law,
4. For the p:irpj>c of proper ,:;>,.^'-3 ;;.!hon of th; argurairus addre^ssvi ' it bar, the oo?ervation ini d^ ny Hi-; i.
.-rJshi p Mr, Justice laqi Ustnaiii, in p.tra M.>. 105 of hi s jaigrn:,tl, order oi the Court, relevant provi sions of
the Constitution, West Pakistan General Clauses Acts, Martial Law Regulation and Punj ab Pre-empt ion Act ,
may be reproduced advant a-aeouslv : Os-iier of the Court
''We whiie afitefin;.' wit!? she reasoning in the judgment of Shaft- o r Rehuian, j , , that Uie Fcder;:' ' Shan^t Court
bad the jurisdiction, to eni c-rtai:), adi udicate an;; decide the petitions out ef which these appeals 'uu; arisen,
t-rder accordingly. On merits, following the majority point of view, Appeals Nos. 4 and 5 of 1979 are dismissed,
and ali other appeals arc allowed in terms of the formal last part of judgment of Mauiana Muhammad Taqi Usmanj ,
J. If possible a consolidated law of pre-empt ion be enacted accordingly till 31-7-1986. There shall be no order
as to costs".
The Constitution of Islamic Republic of Pakistan, 1973 Art. 203A, "The provisions of this Chapter shall have
effect notwithstanding anything contained in the Constitution,"
Art, 203D Uj "The Court may, either of its own motion or on the petition of a cilizen of Pakistan or the Federal
Government or a Provincial Government, examine and decide the question whether or not any law or provision of law
is repugnant to the injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet,
hereinafter referred to as the inj unctions of Islam".
(2) If the Court decides that any law or provision of law is repug nant to the injunctions of Islam, it shall
set out in its decision :
(a) the reasons for its holding that opinion ; and
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(b) the extent to which such law or provision is so repgunant ; and specify the day on which the decision
shall take effect.
(3) If any law or provision of law is held by the Court to be repug nant to the Injunct ions of Islam :
(a) the President in the case of a law with reSpeet to a matter in the Federal Legislative List or the Concurrent
Legislative List, or the Governor in the case of a law with respect to a matter not enu merated in either
of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity
with the Injunctions of Islam ; and
(b) such law or provision shall, to tha extent to which it is held to be so repugnant, cease to have effect
on the day on which the decision of the Court takes effect."
Art. 203F ( \ ) Any party to any proceedings before the Court under Article 203D aggrieved by the fiaal decision of
the Court in such proceedings may, withi n sixt y days of such decision, prefer an appeal to the Supreme Court.
Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such
decision."
Art. 203GG. "Subj ect to Articles 203D and 203F, any decision of the Court in the exercise of its jurisdiction
under this Cnapter shall be binding on a High Court and on all courts subordinate to a High Court "
Art. 264. "Where a law is repealed, or is deemed to have been repealed by, under or by virtue of the
Constitution, the repeal shall not, except as otherwise provided in the Constitution ;
(a) revive anything not in force or existing at the time at which the repeal takes effect ;
(b) affect the previous operation of the law or anything duly done or suffered under the law ;
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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ;
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment ;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment, may be imposed, as if the law had not been repealed. West Pakistan General
Clauses Act, 1956 Sec, 4 (1) "Where this Act or any other West Pakistan Act repeals any enactment then
unless a different intention appears, the repeal, shall not :
(a) revive anything not in force or existing at the time at which the repeal takes effect.
(b) affect the previous operation of atsy enactment so repealed or anything duly done or suffered
there-under : or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so
repealed ; or
(<*) ............ -...............................................
(*) ................................... -.........
(2) The provisions of sub-section (!) shall apply on the expiry or withdrawal of any Ordinance promulgated by
the Governor as if it had been repealed by a West Pakistan Act." Martial Law Regulation 115
Para 25. (3) (d} "Subject to the other provisions of this Regulation, a tenant shall have the first rignt of
pre-emption in respect of the land comprised in tenancy".
Punjab Pre-emption Act, 1913
Section 15, "Subject to the provisions of section 14, the right of pre-emption in respect of agricultural land and
village immovable property shall vest :
(a) Where the sale is by a sole owner or occupancy tenant or, ia the case of land or property jointly
owned or held, is by all the co-sharers iointly, in the persons in order of succession, who but for such sale
would be entitled, on the death of the vendor or veadors, to inherit the land or property sold ;
(b) where the sale i* of a share out of joint land or property, and is aot made by all the co-sharers
jointly,
firstly, In the lineal descendants of the vendor in orders of succession. ;
secondly
t
in the co-sharers, if any, who are agnates, ic order of succession ; thirdly, in the persons, not
included uc<3er firstly or secondly above, in order of succession, who but for such sale would be
entitled, on the death of the vendor, to inherit the land or property sold : Provided that in case where
the sale ss by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall rsad as
follows :
thirdly, in the persons in order of succetsion, who but for such sale would be entitled, on the death of the
vendor to inherit the Sand or property sold.
fourthly, in the co-sharers ;
if no person having a right of pre-emption under clause (a) or
clause (b) seeks to exercise it, ;
firstly, when the sals affects the superior or inferior proprietary right and the superior right is sold, in the
inferior proprietors, and when the inferior right is sold, in the superior proprietors ;
secondly, in the owners of Patti or other sub-division of the estate within the limits of which such land or
property is situate.
thirdly, in the owners of the estate ;
fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of
occupancy is such land or property :
fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of
which the land or property is situate.
Explanation. In the case of sals by a female of land or property to which she has succeeded on a life
tenure through her husband, son, brother, or father, the word 'agnates* in this section shall mean the agnates of
the person through whom she has so succeeded".
5. An examination of the provisions of iaw and the operative parts of the judgment makes it crystal clear that
Shariat Appellate Bench of the Honourable Supreme Court has declared that the provisions of para 253 (d) of
MLR 115 as weil as the provisions of Section 15 (except clause (b) fourthly relating to the right of co-sharer)
of the Punjab Pre-emption Act, are repugnant to the Injunctions of Islam ; that he Honourable Court had given
3I-7-1986 by which date the President in case of MLR 113 and Limitation Act and the Governor of the
Punjab in case of Pre-emption Act, 1913, were required to take steps to amend the law so as to bring such
provisions of iaw in conformity with the Injunctions of Islam ; that no steps apparently have been taken by
the President a- well as the Governor to amend the prevision of law so as to bring such provision in conformity
with the Injunctions of Islam, by the specified day on which the judgment would become effective rendering the
aforesaid provisions of law as 'k'jladam' i.e. void and that as a consequence of the failure on the part of
President and the Governor to amend the law as required by Article 203D (3) (a) of the Constitution,
those provisions of law have, ipso facie, become ineffective, in-operative and have ceased to have effect w.e.f,
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31-7-1986, It has been laid down in case 'Pakistan v. Public at large" report as PLJ 1986 SC 220 at page 231 ;
"When fixing the date sufficient margin will have to be allowed to the Government and the Legislature concerned
to take steps and then t o make the law in accordance wi ia the Injunctions of Islam (Article 203D (3) (a) ;
because if due to paucity of time it is not done, there being no scope for condonation of delay tx post facto
the impugned law shali in any event become ineffective (Article 203D (3) (b). The ensuing consequences can be well
imagined including those of hardship to the public".
Tbe judgment which has taken effect on 31-7-1986 is very much binding Ainot oniy on this Court, on all
Courts subordinate to it but also on ail other Courts in Pakistan by virtue of Article 203GG and 189
of the Constitution and cannot be questioned in any manner So there is no option but to accept
consequences ensuing therefrom. This brings me to the most important question for determination i.e..
whether the judgment tantamounts to repealing the provisions of law declared as repugnant. The dictionary
meaning of the relevant terms may be quoted with advantage : In dictionary of legal words and phrases by
William C. Cochran,-"Repeal" is to annul, or set aside, a law by a legislative act". In Webster's dictionary, the
meanings of word "Repeal" is, "to recall law, or statute, to revoke, to abrogate by authori ty". Its noun is
"revocation or abrogation". n Concise Law Dictionary by P. G. Osborn, the meaning of the word "Repeal"
is "abrogation of a statute or part of a statute by a subsequent statute". In the same dictionary, the meaning of
the word " Ex post facto"
c
is "by a subsequent act". In Legal Maxims Foreign Words Terms and Phrases by
Ommanuel Zafar, "Ex post facto" is, (From a law made after) ; i.e., the law is retrospective, being passed only
after the thing prohibited was done ; Every law that takes or impairs a vested right is retrospective.
In 'A Modern Guide of Synonyms and Related Words' the word "effect" is that it can refer to the successful
accomplishment of an intended Jaction. The eanings of the word "cease" most often suggests an abrupt (stopping.
It appears to me that the judgment is not "repeal" of those provisions of law declared as repugnant to the
Injunctions of Islam within the meaning of Section 4 of West Paki stan General Clauses Act, 1956, Section 6 of
the General Clauses Act, 1897 and Article 264 of the Constitution. The words "whether thi s Act or any
other West Paki stan Act repeals any enactment" and the word "Whether this Act or any Central Act or
Regulation made after the commencement of thi s Act repeals any enactment made or hereinafter to be made-"
used in section 4 of the West Pakistan General Clauses Act, 1956, and Section 6 of the General Clauses Act,
1897, respectively, are of great significance and tend to show that the right of repeal is inherent in legislation
alone, therefore, any change of law otherwise than by legislation will not constitute "repeal"' so as to protect any
right, privilige, obligation or liability acquired, accrued or incurred under the Punjab Pre-emption Act or
previous operation of the provisions of law declared as repugnant to the Injunctions of Islam or anythi ng duly
done or suffered thereunder before the crucial date and also the cont inuation of the suit pending on that
date. The Supreme Conrt in a case reported as PLD 1954 SG 673 has held that whe unconstitutional statute is
declared by the Court to be void, the court doe* not thereby repeal the statute but merely holds it to be
ineffective or inoperative. The expression "void law" does not mean that it was effected f
r
otn the
statute book. The contention that a law declared as void should entail consequences similar to those of
repeal of statute was repelled and it was categorically enunciated that the word "void" as regards law
clearly implies that its provisions have become totally unenforceable. In case reported as PLD 1964 Dacca
795, it was held that the expression "repeal", "deemed to have been repealed" and "void" used id
different articles of the Constitution of 1962 cannot be taken to have been intended to convey the satne
meaning and nor can the consequences that flow such happening be taken identical and that the courts
function is not to legislate. Had it been the intention of the Framer of Chapter 3A of the Constitution to
repeal/deemed to have been repealed, the law or provisions of law declared as repugnant to the Injunctions
of Islam by reason of the judgment then nothing stood ia its way to include the words "repeal" or ' deemed to
have been rep;aled'* in Article 203D (3) (b) and would not have used the words" ceased to have effect on
the day on which the decision of the Court takes effect". In case reported as PLD 1958 Lahore 853, it was
held that invalidity was not equivalent to repeal of provision. Ths Court canaot give relief under an
invalid law, In case reported as PLD 1959 SC (Pak.) 38? at 446 the meaning of the word -'void" was
explained as being "not in operation", "not enforceable or "in abeyance" and these expressions do not have
effect of a repeal or abrogation of any law The case reported as PLJ 1974 Lafa. 565 is mn authority on
all fours with the principle of Saw involved in the instant case. Some writ petitions were pending in the
High Court pertaining to terms and condition of service when the Service Tribunals Act, 1973 ia
consonance with the provisions of Article 2!2 of the Constitution came into force and
thereby the said petitions abated. It was contended that provisions of Article 264 on
the subject of repeal would become applicable enabling the continuation of the said writ
petitions in the High Court despite the change in law. The contention was repelled as in Article 264 of
the Constitution, there was a clause to the effect that the said article is to operate "except as otherwise
provided in the Constitution". Article 212 of the said constitution contained such provisions of
exception. So, Article 264 on the subject of repeal could not be applied for the continuation of the said
writ petitions. In the instant case also the over riding aspect of provision, of Chapter 3A of the Constitution is
much in evidence as per Article 203A which is to the effect that "the provisions of this Chapter shall have
the effect notwithstanding anything contained in the Constitution", hence, Article 264 of the Constitution
does not apply to the judgment to give life to the pending proceedings. The law unless recalled by
Legislation remains on the Statute Book but it may some times cease to have effect for various reasons. For
instance, the offence of section 153B was created in 1962 but for this offence no corresponding amendment
was mads in Schedule II of Cr. PC to provide the procedure for the srial, etc, for the said offence, thus this
offence remained oo the Statute Book but the same was ineffective in the terms as was beid in case reported
as PLD 1965 Dacca 348. It was held in case reported as PLD 1980 Peshawar 154 that the law or provision
declared as repugnant ceases to have effect aad the provisions of law so declared as repugnant get extinct
but that would not amount to removal of law from Statute Book. Although the constitution under Article 268
accords protection to all the laws existing at the time of 'its enforcement in that whole of the Statute Book is
preserved and is {allowed to hold field until it is repealed or amended by due process of Legislation, yet a clear
departure has been made under Article 203D from that manner which is recognised by the rest of the Constitution
inasmuch las, a body foreign to the field of Legislation i.e. Federal Shariat Court/ Shariai Appellate Bench of the
Supreme Court, have been empowered to declare Saw or provisions of law out of not only those whi ch were
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preserved and recognised as valid by the Constitution but also from that orpus-juris which has to coma into being
after the enforcement of the Constitution and this departure is not without wisdom and significance. The judgment
has been given under the jurisdiction conferred by the Constitution, /.. by virtue of Article 203D (l}(2)(3)(6).
So the same to he extent it has declared the provisions of the Pre-emption Act and V1LR 115 as repugnant to
the Injuuctions of Islam has on the crucial day effective without intervention of the Legislature with the result hat
those provisions have become in-effective and unenforceable although he same will remain on Statute Book
unless repealed through Legi sla-ion.
6, As far, legal status of the judgment I am of the view that the jdecisioa of the Shariat Appellate Beach of the
Supreme Court in declaring [the nature of the provisions of the Pre-emption Act and MLR 115 as void owing to
their repugnancy t o the Inj unctions of Islam is obviously declaratory. The authority in support of the princi ple
is case report ed as PLJ 1981 Lahore 519.
7. It may be noted that the word "cease" carries specific interpreta-Ition of total extinction. Whether the
judgment is prospective or retros-Jpective in its effect and whether an amendment in the Pre-emption Act so as to
apply the rule laid down in the judgment with retrospective effect is necessary or not, to my mind, in all
eventualities, the fact remains that in -dew of the distinguished features and peculiar nature of Law of Pre-
emption that the pre-emptor sh?li not only possess his preferential right at the tifflirnr sal? but shall also
carry and retai n the lams bottT on the decree had been passed in favour of the pre-emptor/pl aint iff. In thi t
connection the entire law was examined and discussed. Tbs observat ions of their Lordships at page 75 may be
quoted convenieutly :
"The reported cases in which a decree had been obtained by the pre-emptor in the Court of first instance before
notification under section 8 (2) of the Punjab Pre-emption Act, 191?, was issued, are easily distinguishabl e
from those in which the right to preempt had not yet beea incorporated into a formal adjudication by a Court. In
the former type of cases, it could be reasonably argued that the right to sue had merged in the decree of the
Court, which would henceforth be regarded as the source of rights, for the decree holder. Such a decree would,
therefore, call for no interference on the ground that a notification subsequently promulgated, had taken away the
right of pre-emption in similar cases. The real di fficulty arises in the cases of the second type, of which Kaju Mai
v. Salig Ram (91 PR 1919) and Mohlndar Singh v.Arur Singh (ILR 3 Lah. 26?) may be cited as representative.
With all respect, it seems to us that the learned Judges in those cases, interpreted the words of ihe notification
too narrowly in their anxiety to save, vested rights. The words of the notification appear to us to be plain and to be
fairly suspectible of the interpretation that with the promulgation of the notification, all rights of pre-emption
would cease to exist ia the area mentioned in the notification, whether they pertained to sales that bad already
taken place or to those which were to be held thereafter. The only exception that could be recognised ta this
proposition would be in favour of cases in which decrees Bad already been obtained by the pre-emptors, prior to the
notification. In the case of such an existing deecree, it could not be said that the pre-empt or was seeking to
enforce hi s right to pre-empt . The right had already been successfully asserted before the date of the notifi cation.
But in the absence of any such adjudication by a Court, there is no reason why full effect should sot be given to
the comprehensive words of the notification so as to non-saSt pl aintiffs who tnay have filed suits for
pre-emption before the date of the notification as well as debar aS! pre-emptors from instituting suits to enforce
their right of pre-emption ia the area in question subsequent to the date of the notification".
On the same analogy it seems that in the absence of any such adjudication by a Court, there is no reason why full
effect should not be giveo Co the plain and comprehensive words used in the judgment as well as Article
203D (b), i. e. "such iaw or provi sion shall to the ext ent to whi ch it is held to be repugnant cease to have
effect on the day on which the decision of the Court takes effect", so as to non salt the plaintiffs whose suits have
not been decreed before the crucial date, as well as to debar all pre-emptors from instituting suits to enforce
right of pre-emptios or, the basis* of the provisions of law declared as repugnant to the Injunctions of Isiami
because the preferential pre-emptive right possessed by them has become! void, ineffective and extiact on the
crucial date. This rule would bsf equally applicable to the appeal filed by unsuccessful pre-emptor because} by
reason of the judgment, be having lost his right to pre-empt before tit*? crucial day, is no more entitled to the grant
of decree in his favour. I am fortified in this view of the matter by judgment of the Supreme Court reported as
PLD 1961 SC 69. NLR 1980 (Civil) Lab. 61, PLJ 1984 SC 320 ; PLJ 1985 SC 380 and 1982 CLC 2663. In these
cases the effect of taking away the right to pre-empt during the pendency of suit/appeal was considered, discussed
and determined. The observations made in para, 7 of the last quoted judgment may be reproduced with advantage
:
"Undoubt edly the notification in question would be operative from the date of its publication in the official
Gazette and not retrospectively but the appellants are required to shosv that they had superior right of pre-emption
not only at the time of sale, the institution of the suit but also till the passing of decree by the competent Court. The
notifi cation in question extinguishes the right of pre-emption in respect of the sale of the suit land and therefore, the
appellant obviously could not maint ain h;s superior right of pre-emption till the date of decree. The case relied
and cited by learned counsel for the appellants is distinguishable inasmuch as that the learned Judges m that case did
not address themselves Jo the question whether the plaintiff lost his right of pre-emption before the date of decree. The
notification issued in that case hi t alienation of the properties in genera! effected through public auction under
the orders of the Court of Wards as distinguishable from the facts of the instant case wherein the notification in
question specifically relates to the sale of the land in di spute. The impugned judgment/order of the learned trial
Court holding the suit of the plaintiff having become infructuous from the date of operation of the notification
is un-excep-tionable".
The principles with regard to the consequences of extinction of the right of pre-emption during the pendency of suits laid
down in the aforementioned authori ties can safely be applied to the judgment by reason whereof the right of
pre-empt ion claimed on the basis of the provi sion of para. 25 clause (3) (d) of MLR 115 as well as the
provision of Section 15 (except clause (b) fourthly relating to the right of co-sharer) of the Punjab Preemption Act
have been taken away on the crucial date. There the right to pre-empt had extinguished by the force of a notification
and here the right to pre-empt has become extinct by reason of the judgment passed under the powers conferred
by Chapter 3A of the Constitution
8. Coming now to the question whether the judgment has conferred right to pre-empt on feel that since. the
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rights have oot been brought on the Statute Book through Legislation so far, therefore, the same cannot be regarded
as a codi fied law of the country so as to be enfcrcible under the law.
9. Dealing with the last question whether the plaint of a pending suit can be rejected under Order VII, Rule 11.
CPC on the ground that the pre-emptor having lost his right during pendency of the suit, the plaint ither
does not disclose cause of action or the suit has become barred byIlaw, my answer is in the negative, in that for
the application of Order VII, Jrule 11 CPC, material foreign to the plaint cannot be taken into account ; ^that the
plaint when filed, it did disclose the cause of action and if aver-ments in the plaint were accepted as true, the
plaint did not suffer froa infirmity envisaged by Order VII, rule 11, CPC. Furthermore, the words "suit
appears to be barred by law" used in rule 1 i of Order VII CPC,, are of great significance and contemplate only
those suits, the cognizance or trial whereof has specifically been barred by law or provisions of law The fact
of the right having been taken away during the pendency of the suit does not operate as legal bar to the
cognizance or the trial of the suit. Rule IS cannot be stretched to include therein grounds of aoo-mamtain-ability
of suit on the ground that rights have ceased to exist during the pendency of suit, I am afraid, it may tantamount
to adding more grounds for the rejection of plaint. The terms "barred by Saw", "bad in law" "unenforceable
under law" and "ineffective under the law" are not synonymous, so a plaint, cognizance of which was not
specifically barred, by law or provisions of law cannot be rejected on the ground that the right of pre-emptor
has become extinct during the pendency of the sun although the suit pending on crucial day may-be dismissed on
the ground of its non-maintainability, or that the plaintiff/pre-emptor has lost his preferential pre-emptive right
before a decree in his favour could be passed, by treating issue relating to the superior right as preliminary one,
10. The above discussion leads to the conclusions that the judgment of the Shariat Appellate Bench of
the Honourable Supreme Court having become effective, the provisions of para. 25 clause (3) (d) of MLR 115
as well as provisions of Section 15 (except clause (b) fourthly relating to the right of co-sharer) of the Punjab
Pre-emption Act, ceased to have effic't with effect from 31-7-1936 ; tbat the judgment of the Shariat
Appellate Bench of the Honourable Supreme Court is binding not only on the High Court tad the Courts
subordinate to it but also on ail courts in Pakistan that the judgement enjoys a declaratory status ; that the
judgment is not a repeal implied repeal of provisions of law declared as repugnant to the Injunctions of
Islam, within the meanings of Sections 6 and 4 of the General Clauses Act, 1897 and West Pakistan General
Clauses Act, 1956. respectively and Article 264 of the Constitution as well ; that the judgment being as
declaratory afi'ects the suits and appeal filed by the unsuccessful pre-emptors against the dismissal of suits, jn
the sense that the preferential pre-emptory rights having become ineffective and extinct on 11-7-1986, it is not
possible, under the law, to enforce those rights and grant decree in favour of the pre-emptors in suits,
appeals, revisions or writ petitions that since the pre-emptor is not required to retain his preferential right
after decree in his favour and the right having already been successfully asserted before the crucial date, the
pre-emptor had become full owner,, so the decree in favour of pre-emptor granted before the crucial date
will! be immune subject to the merits of the case ; that the two additional' preferential pre-emptory rights
of "
w
jjj" and "t-^!*^ .^ijl -3y^- <"!>* ' cannot be regarded as codified law 01 the country, so the same are
not enforceable ; that ths law of Limitation to the extent it has been examined
and declared repugnant to the Injunctions of Islam also ceased to havs effect on the crucial date and that a
plaint cannot be rejected by the trial Court or the Appellate Court under Order VH, rule 11 CPC by reasons
of 'the judgment.
11. As far the merits of the case, I have not been able to persuade myself to agree with the learned
counsel for the appellant, I find that the courts below have applied conscious tiind to the relevant evidence
and! have given sound and cogent reasons in support of the conclusions arrived! at by them. The findings of the
Courts below on issues No. 1, 2 & 3 doj not suffer from non-reading or mis-reading of any material evidence.
Th learned counsel has not pointed out any mis-reading or non-reading of material evidence by the courts below.
The mutation was attested on 29-4-1974, so, the suit wh'ch was filed on 24-4-1972 was well within time. There is no
cogent evidence to the effect that the vendee had taken under the sale, the physical possession of the suit land on
21-4-1974 or that the suit land was capable of admitting physical possession. The Courts below have appreciated
evidence led on the issues in accordance with law and the case law laid down by the Superior Courts. For all these
reasons, I am of the view that no exception can be taken to the impugned judgments and decrees. There being no
merit, the appeal is dismissed, leaving the parties to bear their own costs.
12. Before parting with the judgment I want to bring on record my appreciation of the valuable assistance rendered by
Pir Rafi-ud-Din Shah, Mirza Manzoor Ahmad and Mr. Riaz Anwar Advocates. They have ably assisted the Court
with hard-work in this case as amicus-curiae.
(TQM) Appeal dismisied.

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