AJK Pre-emption Act, 2016

  1. — Section 3(1)—enforcement of the Act—from 20.7.2015–it has clearly been provided that the Act shall be deemed to have taken effect from 20.07.2015, therefore, in such state of affairs, it is quite clear that newly enacted law was very much holding the field when the appellant filed suits and its provisions were fully applicable. [Muhammad Aslam Khan v. Azhar Mehmood & others 2019 SCR 504 (A)
  2.  — section 13 & 33(2) — AJ&K Right of Prior Purchase Act, 1995 Bik — NWFP Pre-emption Act, 1987 — section 35 — Punjab Pre-emption Act, 1991 — section 34(2) — section 33 of Act, 2016 & section 34 (2) of Punjab Pre-emption Act, 1991 are peri-materia provisions — suit filed under Act, 1995 Bik — during pendency Act, 2016 introduced — High Court while relying on 1992 SCMR 445 dismissed suit u/s 33 of Act, 2016 — contention that High Court wrongly relied on 1992 SCMR 445, which relates to interpretation of section 35 of NWFP Act, 1987, which provides that all pending cases shall stand dismissed except those in which right of preemption is claimed under new Act, whereas Act, 2016 is silent in respect of pending cases — Court held that the provisions of section 33 of Act, 2016 and 34 (2) of Punjab Pre-emption Act, 1991 are almost same — the Supreme Court of Pakistan in 1999 SCMR 2518 after comparative examination of section 34 (2) of Punjab Preemption Act, 1991 and section 35 (2) of NWFP Pre-emption Act, 1987 concluded that the scope and consequence of both the provisions are same which are meant to protect the judgments & decrees passed — If a decree is not passed before a target date, pending cases cannot continue under the provisions of repealed Act — the Court concluded that provisions of section 33 of Act, 2016, section 34 (2) of Punjab Pre-emption Act, 1991 and section 35 of NWFP Pre-emption Act, 1987 have the same effect on the pending cases — admittedly suit was filed prior to promulgation of Act, 2016 and no final judgment and decree was passed, hence the suit is to be governed under Act, 2016 — section 13 of Act, 2016 provides to make talabs — appellant failed to make talabs in accordance with section 13 of Act, 2016 — hence suit rightly dismissed by High Court. Amjad Hussain vs Mst. Sakeena Bibi & others 2024 SCR 146 (A,B,C,D&E) 1992 SCMR 445 1999 SCMR 2518 & 2004 SCMR 1338 rel. 
  3. —Section 24—Contract Act, 1872—section 126—pre-emption suit—bank guarantee equal to 2/3rd of sale price—furnishing of plaintiff was directed to deposit 1/3rd of sale price in cash and furnish bank guarantee equal to 2/3rd of sale price—plaintiff produced a verification issued by post office, instead of furnishing guarantee–observed:verification does not fall within the definition of bank guarantee—under section 126 of Contract Act, the contract of guarantee is a contract to perform promise or discharge the liability of a third person in case of default—the execution of a contract, bond, deed or under taking to discharge the burden of third party on his default amounts to furnish a guarantee—the bank guarantee constitutes an independent contract which is quite separate from main agreement between the parties—  a contract of bank guarantee is a trilateral contract—held: mere furnishing verification certificate of an account lying with bank or post office is not sufficient to meet the requirement within the meaning of section 24. Muhammad Tanvir Versus Sardar Abdul Qayyum Khan 10 others 2021 SCR 672 (A,B& C)
  4. —Section 24—the period fixed for depositing the requisite amount or bank guarantee is 30 days—the Court cannot extend the same—in case of failure the suit would be dismissed. Muhammad Tanvir Versus Sardar Abdul Qayyum Khan 10 others 2021 SCR 672 (E) 1999 SCMR 2496 & 2019 SCR 504 rel.
  5. —Section 24—pre-emption suit— the plaintiff is required to deposit one-third of the sale price of the property in cash and furnish bank guarantee for the remaining two-thirds of such probable value—the bank guarantee is a type of financial backstop offered by a lending institution— the bank guarantee means that the lender will ensure that the liabilities of a debtor will be met— in other words, if the debtor fails to settle a debt, the bank will cover it. Mudassar Hussain Shakir v. M. Basharat & another  2022 SCR 973 (B&C)
  6. — Section 24—pre-emption suit— plaintiff is required to deposit one-third of price of the sale and bank guarantee to the extent of remaining two-thirds amount— pre-emptor deposited one-third amount in cash and bank statement for remaining amount —under 3rd proviso to sub-section (1) of section 24 an option has been given that the plaintiff may deposit, in lieu of bank guarantee, the required amount in cash— option has not been exercised by the plaintiff— under sub-section (3) of section 24 where the plaintiff withdraws the sum deposited, his suit shall be dismissed—the plaintiff withdrew the amount from his account regarding which he had furnished the bank statement if for the sake of argument, the bank statement furnished is treated as bank guarantee even then the statutory provision is quite clear that the suit shall be dismissed on withdrawal of sum deposited by the plaintiff under sub-section (1) of section 24 and not from the plaintiff’s own bank account. Mudassar Hussain Shakir v. M. Basharat & another  2022 SCR 973 (E)
  7. — Section 24—pre-emption suit—Held: withdrawal of amount by plaintiff from his bank account did not attract the penal consequence of dismissal of the suit  Had the appellant deposited
  8. the amount in cash in lieu of bank guarantee as per 3rd proviso and thereafter withdrawn the same, the suit would have been liable to be dismissed. Mudassar Hussain Shakir v. M. Basharat & another  2022 SCR 973 (G)
  9. — Section 24—‘bank guarantee’ — the ‘bank guarantee’ is not something to be withdrawn like cash amount from the bank account rather, it is an undertaking that if the debtor fails to settle a debt, the bank will cover it. Mudassar Hussain Shakir  v. M. Basharat & another  2022 SCR 973 (H)
  10. —section 24(1), 1st Proviso— extension of time for depositing 1/3rd amount—not permissible by law—provision is mandatory—proviso (1) of section 24 has imposed the conditions on the Court that the period fixed by the Court for depositing the requisite amount would not be extended beyond 30 days. As 30 days time has been fixed by the statute itself and where statue prescribes time for doing an act the Court has no jurisdiction to extend the same. Muhammad Aslam Khan v. Azhar Mehmood & others 2019 SCR 504 (E)
  11. —section 24(1) —depositing of 1/3rd of sale price in cash and for remaining 2/3rd furnish bank guarantee—provision is mandatory— from the bare reading of the statutory provision of law it is obvious that it is mandatory for the Court to direct the plaintiff to make deposit in the Court 1/3rd of the sale price of the suit property in cash within such period as the Court would fix.  Muhammad Aslam Khan v. Azhar Mehmood & others 2019 SCR 504 (D) 
  12. —section 24(2) —effect of non-depositing of 1/3rd of sale price—within the period fixed by the Court—the suit shall be dismissed—in case of failure to deposit the 1/3rd of the sale price as well as bank guarantee in respect of remaining two thirds within the stipulated period the suit would be dismissed. Held: The trial Court rightly dismissed the suits of the appellant.  Muhammad Aslam Khan v. Azhar Mehmood & others 2019 SCR 504 (F) PLD 2013 SC 489 & 2005 YLR 223 rel
  13. Section 29 — suit for pre-emption — limitation — sale deed executed on 10.02.2015, whereas suit filed on 15.03.2018, after a period of more than 3 years — under the statutory provision, the period to enforce right of pre-emption is four months (120 days) from the date of sale or taking over the possession of the sold property and not from the date of knowledge. Shahid Shabir vs Atif Khan & another 2024 SCR 245(A) 2006 SCR 204 ref
  14. —section 33—AJ&J Pre-emption Act, 2016, does not apply to cases wherein decrees have attained finality before enforcement of this Act—cases of pre-emption in which decrees have been passed and attained finality under AJ&K Right of Prior Purchase Act, 1993(BIK) before the  date of enforcement of the AJK Pre-emption Act, 2016, i.e. 20.0.2015, shall be governed by the Act, 1993(BIK)—the benefit of section 33 of the Pre-emption Act, 2016, cannot be extended to the appellant as it has been provided in the said provision of law that the cases and appeal filed under the Prior Purchase Act, 1993(BIK), in which judgments and decrees have been passed before the enforcement of this  Act and have become final, further proceedings relating to such cases and appeal, if any, shall be governed and continued in accordance with the provisions thereof, whereas, no such eventuality is available in the instant case. Muhammad Aslam Khan v. Azhar Mehmood & others 2019 SCR 504 (B)

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