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Petitioner: MUHAMMAD YAQOOB VS Respondent: JEHANGIR KHAN
1993 S C M R 2108
1993 S C M R 2108
[Supreme Court of Pakistan]
Present: Nasim Hasan Shah and Saad Saood Jan, JJ
Haji MUHAMMAD YAQOOB and others‑‑‑Appellants
versus
JEHANGIR KHAN and others‑‑‑Respondents
Civil Appeals Nos. 201, 202 and 203 of 1987, decided on 9th January, 1991.
(Against the judgment dated 6‑4‑1986 of the Peshawar High Court, Circuit Bench, Abbotabad in Civil Revisions Nos.41, 42 and 43 of 1984).
North‑West Frontier Province Pre‑emption Act (XIV of 1950)‑‑‑
‑‑‑‑S. 6‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Pre‑emption suit‑‑ Remand order‑‑‑No decree had been passed so far‑‑‑Plaintiff who had obtained a decree from Trial Court or any higher forum before 31‑7‑1986, could defend said decree in any forum but if no such decree had been passed by Trial Court or any higher forum before 31‑7‑1986, no decree for pre emption, could be passed thereafter by any Court or forum on ground that matter was instituted or pending in Court before 31‑7‑1986‑‑‑No decree for pre‑emption having been passed in favour of plaintiffs before the target date or even afterwards order of remand passed by First Appellate Court for disposal of case afresh would be of no use or benefit to plaintiff‑‑‑Order of remand was set aside in circumstances.
Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shalh PLD 1986 SC 360 and Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 ref.
Abdul Hakeem Khan, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants (in all Appeals).
MA. Siddiqi, Advocate‑on‑Record for Respondents.
Date of hearing: 9th January, 1991.
JUDGMENT
NASIM HASAN SHAH, J.‑‑‑This judgment will dispose of the above noted three appeals as a common question of law is involved in all of them.
In all these three appeals the respondent/respondents had brought separate suits for possession through exercise of the right of pre‑emption claiming superior pre‑emptive rights. All the three suits were dismissed by the learned Civil Judge vide his judgment dated 27‑4‑1983. However, on appeals filed by the respondents, the learned District Judge vide his separate judgments passed on 25‑1‑1984 remanded the cases to the trial Court for disposal in accordance with the observations made in the judgment. The appellants herein challenged the said judgments by filing civil revisions in the Peshawar High Court which were heard by a Circuit Bench of the said Court at Abbottabad. The High Court, however, dismissed the said revisions vide judgment dated 6‑4‑1986 with the result that the judgment and order of the District Judge remained intact whereby the matters were remanded to the learned trial Court for final decision.
The above recital of facts reveals that no decree in favour of the pre emptors has been passed so far. This Court in Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287) has held that a plaintiff who has obtained a decree from the trial Court or any higher forum before 31‑7‑1986 can defend the said decree in any forum but if no such decree has been passed by the trial Court or any higher forum before 31‑7‑1986 no decree for pre‑emption can be passed thereafter by any Court or forum on the ground that the matter was instituted and pending in the Court before 31‑7‑1986. Accordingly, no decree for pre‑emption can now be passed in favour of the pre‑emptors. In the circumstances, the order of remand passed by the learned District Judge setting aside the judgment of the trial Court and remanding back the case for disposal to him is of no use or benefit to the respondents because no decree of pre‑emption can be passed in their favour at this stage in view of the law declared, mentioned above.
The result is that these appeals must succeed. Since no one has appeared on behalf of the respondents to oppose them there shall be no order as to costs. The appeals are, accordingly, allowed. No costs.
AA./M‑1800/S Appeals accepted.