2012 PLP 1106 (SCMR)

TASSADUQ HUSSAIN JILLAIN, J.

This appeal is directed against the judgment dated 7-8-2006 passed by the learned High Court in a pre-emption case vide which the concurrent judgments and decrees of the two courts below were reversed and the suit of the respondent/ plaintiff was decreed.

2. Learned counsel for the appellant submits that both the Trial Court and the learned Court of Appeal had dismissed the respondent's suit for pre-emption as one of the essential talbs namely Talb-e-Muwathibat had not been proved in accordance with law as the respondent/plaintiff did not appear personally nor any reason was given for non-appearance; that right of pre-emption is a personal right and mandates performance of two talbs i.e., Talb-e-Muwathibat and Talb-e-Ishhad; that the former talb is personal to the pre-emptor and could not have been proved through special attorney as the veracity of the said talb can only be examined if the pre-emptor herself appears.

3. Learned counsel for the respondent/plaintiff defended the impugned judgment by submitting that the learned High Court has correctly interfered and reversed the concurrent judgments of the two courts below as the plaintiff had been non-suited by two courts for reasons not sustainable in law; that the law permits the pre-emptor to be represented through an attorney; that even talbs can be performed through the attorney in terms of section 14 of the N.-W.F.P. Pre-emption Act, 1987 and that if the attorney is not permitted to appear on behalf of the plaintiff, the mandatory provisions of law are likely to be frustrated. In support of the submissions made, learned counsel relied on Muhammad Younis v. Mst. Mehr Afzoon (PLD 2002 Peshawar 109).

4. Having heard learned counsel for the parties at some length, we find that the pre-emptor namely Mst. Nisar Akthar did not appear herself and elected to be represented through her attorney Habib-ur-Rehman who appeared as P.W.7. But neither he nor any other witness gave any reason as to why she did not appear. Hassan Bacha P.W.6 admitted that the pre-emptor was at home but even then he did not give any reason for non-appearance. A bare reading of the special power of attorney (Exh.P.W.6/1) in favour of Habib-ur-Rehman P.W.7 indicates that the said attorney was not even authorized as a witness on her behalf with regard to performance of the Tabl-e-Muwathibat. It reads as follows:--

5. The contention that the pre-emptor has an option to appear or not to appear to prove Talb-e-Muwathibat in view of section 14 of the N.-W.F.P. Pre-emption Act, 1987, would not be tenable as the said provision is qualified and can be availed only if the pre-emptor "is unable to make demands" and has valid reasons for non-appearance. The reasons could be minority, his or her sickness or any other disability but has to be pleaded in terms of the said provision. Section 14 of the ibid Act reads as follows:-- "

14. Demands by the guardian or agent. Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf."

6. Admittedly there is nothing on record to indicate as to why she did not appear in person. P.W.7 Habib-ur-Rehman who appeared as her special attorney in his examination-in-chief stated that the pre-emptor was her sister in law (sister of his wife); that she resides with him but gave no reason as to why she did not appear herself. Even the other two witnesses namely P.W.5 Ghani-ur-Rehman and P.W.6 Hassan Bacha did not give any reason whatsoever for her non-appearance. It has time and again been held by this Court that the right to pre-empt is a personal right. In Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957) this Court at page 960 held as follows:-- "The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (ibid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-i-Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-i-Muwathibat himself and appear in Court in person."

7. The afore-referred view was reiterated in Hassan Bano v. Wali-ur-Rehman (2007 SCMR 1344).

8. There is yet another aspect. The best evidence with regard to performance of Talb-e-Muwathibat is the person who makes such a talb. The effect of non-production of best evidence is provided in section 129 of the Qanun-e -Shahadat Order, 1984, which reads as follows:-- "

129. Court may presume existence of certain facts. Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume-- (a) that man who is in possession of stolen goods soon after the theft is either the theif or has received the goods knowing them to be stolen, unless he can account for his possession; (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) the a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) that a thing or state of things which has been shown for be in existence within a period shorter than that which such things or states of things usually cease to exist, is still to existence; (e) the judicial and official acts have been regularity performed; (f) that the common course of business has been followed in particular cases; (g) that evidence which could be and is not produced would, if produced, be unfavourable to. the person who withholds it (Emphasis is supplied); (h) that, if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him; (i) that when a document creating an obligation is in the hands of the obliger, the obligation' has been discharged."

9. The case of the respondent/plaintiff would be squarely hit by Article 129(g) of the Qanun-e-Shahadat Order referred to above as without assigning any reason, the best evidence was withheld and not produced. In Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1959 (W.P) Peshawar 81), a Division Bench of the said Court observed as follows:-- "It is, therefore, positively proved that so far as Fateh Muhammad Khan is concerned, he purchased the property with the notice that it had already been agreed to be sold to the plaintiffs. So far as the other defendant-appellants are concerned, none of them appeared in the witness-box except Mr. Afzal Khan. It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. By non-appearance, therefore, the defendant-appellants except Mir Afzal Khan failed to discharge the onus or shift the onus on to the plaintiffs."

10. In Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 235), the plaintiff did appear but failed to produce the person in whose presence he made Talb-e-Muwathibat. The Court in these circumstances raised adverse presumption against the plaintiff and observed as follows:-- "No inflexible rule can be laid for application of certain rule in a judgment to every and each case as each case proceeds on its own diverse facts. Although it is not necessary to mention the name of the person in the plaint in whose presence Talb-i-Muwathibat was made, but in this case the plaintiff admitted in his cross-examination that he had made Talb in presence of Tayyab Khan but he failed to produce him as his witness. It was also not clarified/explained by the plaintiff in his statement as to why Tayyab Khan could not be produced as it was not stated that he was either won over by the other side or that be had turned hostile towards him for some other reasons or that out of fear of the defendant or for some other consideration the defendant was successful to prevent him to depose in favour of the plaintiff. Article 129(g) of Qanun-e -Shahadat reads:-- "That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it" Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him."

11. There is no cavil to the proposition that a pre-emptor can be represented through an attorney but there has to be valid reasons for non-appearance which in the instant case are lacking. The learned High Court condoned this infirmity and reversed the concurrent judgments on the ground that though educated but she could not "afford and endure the agonies of appearing as a witness in civil matters". Little did the High Court realize that it is in evidence that the power of attorney was given by her in favour of P.W.7 Habib-ur-Rehman in the premises of the tehsil court. If she could appear at tehsil level, what prevented her to appear before the trial Court or having herself examined through a commission in terms of section 132 of the Civil Procedure Code.

12. In the afore-referred circumstances, the judgment of the trial Court, non-suiting the respondent/plaintiff was unexceptionable. In reversing the concurrent judgments and decrees, the learned High Court, we may observe with respect, non-read material pieces of evidence and upset the concurrent findings for reasons not sustainable in law. That being so, this appeal is allowed, the impugned judgment is set aside and the judgment of the trial Court dated 13-5-2000 dismissing respondent/ plaintiff's suit is restored. M.W.A./D-1/SC Appeal allowed.