:Munir Ahmed vs :Mst. Toheeda Tul Hassan

Stereo.HCJDA 38.

JUDGMENT SHEET.

LAHORE HIGH COURT

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

C.R.No.392-D of 2017

Munir Ahmed Versus.

Mst. Toheeda-tul-Hassan

JUDGMENT.

Date of hearing: 20.10.2025.

Applicant by: Mr. Asif Mehmood Bhatti, Advocate.

Respondent by: Malik Muhammad Nawaz Khan, Advocate.

Mirza Viqas Rauf, J. The fate of matter in issue raised in this revision application under section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “CPC”), hinges upon section 2(a) of the Punjab Pre-emption Act, 1991 (hereinafter referred to as “Act, 1991”).

2.Before embarking upon the legal proposition involved herein, it would be advantageous to have a resume of the facts. Suit property in the shape of shop bearing No.BIII/24-B measuring 100 square yards, 60/15 feet bearing Khasra No.503 Khatooni No.8, Khewat No.7 is situated in Civil Bazar, Attock, which devolved upon the respondent through registered deed bearing No.3869 dated 17th November, 2009 captioned as exchange deed in lieu of consideration of Rs.22,00,000/-. The applicant claiming the transfer as sale, instituted a suit for possession through pre-emption before the learned Civil Judge, Attock. Suit was resisted by the respondent by filing written statement and in view of the divergent pleadings, learned Civil Judge, Attock framed multiple issues. The respondent then moved an application seeking rejection of plaint on the ground that as the transaction relates to shop, so it is not pre-emptable. The application was resisted by the applicant but it was allowed by way of order and decree dated 10 th November, 2015 and

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resultantly, it was held that suit in hand is not maintainable and was dismissed. Feeling aggrieved, the applicant preferred an appeal before the learned Additional District Judge, Attock but it was dismissed by way of judgment and decree dated 21st February, 2017, hence this revision application.

3.Learned counsel for the applicant contended that suit has been concurrently dismissed by misconstruing section 2(a) of the Act, 1991. He added that after having been declared part of section 2(a) of the Act, 1991 as repugnant to the injunctions of Islam in the case of Haji Rana MUHAMMAD SHABBIR AHMAD KHAN v. GOVERNMENT OF PUNJAB PROVINCE, LAHORE (PLD 1994 Supreme Court 1), the Courts have erred in law while non-suiting the applicant. Learned counsel emphasized that concurrent findings are patently illegal. In order to supplement his contentions, learned counsel has further placed reliance on MUHAMMAD ISMAIL QURESHI AND ANOTHER v.

GOVERNMENT OF PUNJAB (1991 PSC 1095)

4.Conversely, learned counsel for the respondent submitted that shop in question is since situated in the municipal limits, so it is not pre-emptable in view of section 2(a) of the Act, 1991. It is contended with vehemence that suit was rightly dismissed by the Courts below. Learned counsel, in support of his contentions, has placed reliance on ABDUL AZIZ v. Sheikh FATEH MUHAMMAD (2007 SCMR 336), MUHAMMAD YUNUS v. FAYYAZ MASOOD MALIK and others (2006 SCMR 915), MUKHTAR AHMAD v. RAHEELA SABIR through L.Rs. (2013 YLR 2521), BILAL AHMED and another v. ABDUL HAMEED (2020 SCMR 445) and MUHAMMAD SIDDIQUE and others v. MUHAMMAD SHARIF and others (2012 SCMR 1387).

5.Heard. Record perused.

6.The historic background of Act, 1991 is that in the case of

GOVERNMENT OF N.-W.F.P. THROUGH SECRETARY, LAW

DEPARTMENT v. Malik SAJID KAMAL SHAH (PLD 1986 Supreme Court 360), the Shariat Appellate Bench of Supreme Court of Pakistan) declared the Punjab Pre-emption Act, 1913 as void and ineffective w.e.f 1st August, 1986. After the pronouncement of said judgment, the then

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Governor of Punjab promulgated the Punjab Pre-emption Ordinance V of 1990 on 29th March, 1990, which came into force at once in the province of Punjab. This followed another Ordinance i.e. Punjab Pre- emption Ordinance XII of 1990 promulgated on 29th May, 1990 whereby the previous Ordinance was repealed. On 27th August, 1990, yet another Ordinance namely Punjab Pre-emption Ordinance No.XVIII of 1990 was promulgated by repealing the previous Ordinance XII. On 26th November, 1990, yet another Ordinance in the name of Punjab Pre- emption Ordinance XXVII was promulgated. The Ordinances referred hereinabove were challenged before the Federal Shariat Court through various petitions and during their pendency, in order to reenact the existing law relating to pre-emption, so as to bring it in conformity with the Injunctions of Islam as set out in Holy Quran and Sunnah of Holy Prophet (peace be upon him), Act, 1991 was promulgated on 6th April, 1991. By virtue of section 34 of the Act, 1991, the Punjab Pre-emption Act (I of 1913) was repealed. Section 5 of the Act, 1991 ordains that right of pre-emption shall arise in case of sale of immovable property. The definition of immovable property is mentioned in section 2(a) of the Act, 1991, which reads as under: -

2(a) “immovable property” means immovable property situated in any area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force.”

(Underlining supplied for emphasis)

From the above, it manifests that the immovable property, situated in an urban area or within cantonments limits as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force was excluded from the purview of immovable property.

7.Since the core issue involved herein is rested upon the true scope and import of section 2(a) of the Act, 1991 so leaving aside the rigmarole of facts, it is noticed that Act, 1991 was taken into consideration by the Federal Shariat Court and ultimately sections 2(a), 6(2), 12, 13(3), 22, 29 and 35(2) to the extent stated thereunder were

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declared as repugnant to the Injunctions of Islam laid down in Holy Quran and Sunnah of Holy Prophet (peace be upon him) and all the provisions were declared as void and will cease to be effective as on 21st December, 1991 unless amended and altered by the Provincial Legislature to bring them in conformity with the Injunctions of Islam as discussed above. The matter then came before the Shariat Appellate Bench of Supreme Court of Pakistan through various appeals in the case of Haji Rana MUHAMMAD SHABBIR AHMAD KHAN supra, whereby it was concluded as under: - “Conclusion:

1.The upshot of the above discussion is that the following provisions of the Punjab Pre-emption Act, 1991 are declared to be repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.):--

(i)Section 2(a) in so far as it excludes from the definition of immovable property" all properties situated in urban areas or within Cantonment limits.

(ii)Section 6(2) as it makes the plaintiff in the case of pre-emption liable to prove that he is exercising the right of Shuf’ah on the basis of Zaroorat or to avoid Zarar.

(iii)Section 35(2) in so far as it exempts the suits of pre-emption instituted or pending between 1st day of August, 1986, and 28th March, 1990 from the requirements of Talab-e-Muwathabat and because they have extended the period of limitation for such suits to one year. The Appeal No.12 of 1991 filed by the Government of Punjab with regard to these three sections is dismissed.

(2)The following provisions of the Punjab Pre-emption Act, 1991 are not found repugnant to the Injunctions of Islam:

(i)Section 13(3).

(ii)Section 22.

(iii)Section 24.

The appeal of the Punjab Government with regard to these three sections is allowed.

3.Shariat Appeal No.9 of 1991 (Haji Rana Muhammad Shabbir Ahmad v. Government of Punjab), No.10 of 1991 (Jan Muhammad v. Government of Punjab), and No.59 of 1992 (Mir Afzal v. Ejaz Akbar) are dismissed.

4.This decision shall take effect on 31st of December, 1993 whereby the provisions of Punjab Pre-emption Act, 1991 declared to be repugnant to the Injunctions of Islam shall cease to have effect to the extent of their repugnancy.”

(Underlining supplied for emphasis)

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It is thus clearly evident from the above that section 2(a) of the Act, 1991 in so far as it excludes from the definition of immovable property, all properties situated in an urban area or within cantonment limits was declared repugnant to the injunctions of Islam as laid down in the Holy Quran and sunnah of Holy Prophet (peace be upon him) w.e.f 31st December, 1993.

8.Needless to reiterate that in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Court in Pakistan.

9.Learned counsel for the respondent, however, in order to defend the concurrent findings of the Courts, heavily relied upon the judgment in the case of MUHAMMAD YUNUS v. FAYYAZ MASOOD MALIK supra, perusal whereof clearly reveals that in the said case, suit for pre-emption was instituted much prior to the target date fixed in the judgment in the case of Haji Rana MUHAMMAD SHABBIR AHMAD KHAN supra. Even otherwise, that was a leave refusing order, which cannot be termed as precedent. Same is the case with the judgment in the case of ABDUL AZIZ supra wherein the suit was instituted prior to the target date i.e. 31st December, 1993 and the principles laid down in the judgment of Haji Rana MUHAMMAD SHABBIR AHMAD KHAN supra were taken note of while deciding the lis in the light of section 2(a) of the Act, 1991. So far case of MUKHTAR AHMAD supra is concerned wherein learned single Bench of this Court held that property since situated in an urban area, so it does not fall within the definition of immovable property as given under section 2(a) of the Act, 1991, can be termed none else but judgment per incuriam and bad law in the light of judgment of the Supreme Court in the case of Haji Rana MUHAMMAD SHABBIR AHMAD KHAN supra whereas judgments in the cases of BILAL AHMED and MUHAMMAD SIDDIQUE supra are entirely rested on different facts and circumstances and not applicable at all to the proposition at hand.

10.The above discussion, thus, leads me to an irresistible conclusion that suit instituted by the applicant was not hit by section 2(a)

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of the Act, 1991. There are though concurrent findings to this effect but clearly the outcome of patent illegalities. Being the revisional Court, it is the duty of this Court to rectify the error even if it is committed concurrently by the two Courts. The revisional Court is not supposed to shut its eyes merely on account of the fact that there are concurrent findings of the two Courts. Resultantly, this application is allowed. Impugned judgment and decree dated 21st February, 2017 passed by the learned Additional District Judge, Attock as well as order and decree dated 10th November, 2015 passed by the learned Civil Judge, Attock are set aside being tainted with material irregularities. As a sequel, suit of the applicant shall be deemed pending before the learned Senior Civil Judge (Civil Division), Attock, who shall decide the same afresh strictly in accordance with law on its own merits. No order as to costs.

11.Before parting it is, however, observed that in view of pendency of the lis since 2010, it is expected from the Court seized with the matter to take all possible steps for early conclusion of the proceedings, which shall preferably be finalized within four months from the date of appearance of the parties before the said Court. Parties are directed to appear before the learned Senior Civil Judge (Civil Division), Attock on 24.11.2025. Office to transmit copy of this judgment to the Court concerned for compliance.

(MIRZA VIQAS RAUF)

JUDGE

Dictated:

Signed

Announced in open Court on 12.11.2025.

JUDGE

Approved for reporting

JUDGE

Zeeshan