2014 PLP 579 (YLR)

LAL JAN KHATTAK, J.

This civil revision petition under section 115, C.P.C. is directed against the judgment and decree dated 6-3-2013 of the learned Additional District Judge-III, D.I.Khan whereby appeal of the petitioner was dismissed by confirming the judgment and decree dated 10-5-2011 of the learned Civil Judge-XI, D.I.Khan.

2. Short facts of the case giving rise to the instant revision petition are that the petitioner filed a suit against the respondent to exercise his right of preemption over the suit-land purchased by the respondent through sale Mutation No.3911 attested on 11-11-2002. Respondent contested the suit by filing his written statement. The learned trial Court after framing necessary issues directed the parties to adduce their evidence which the parties did whereafter the learned trial Court vide its judgment and decree dated 10-5-2011 dismissed the suit. Petitioner challenged the dismissal of his suit in appeal but the learned appellate court through its judgment and decree dated 6-3-2013 concurred with the trial Court's judgment and dismissed the appeal, therefore, this revision petition.

3. Learned counsel for the petitioner in support of the revision petition contended that both the courts below have failed to appreciate the evidence of the case in its true perspective and in accordance with the spirit and intent of the Khyber Pakhtunkhwa Pre-emption Act, 1987. He contended that the requisite talbs have properly been performed by the petitioner but both the courts below have taken it otherwise and wrongly held that there is failure in the performance of the requisite talbs. The learned counsel further contended that the learned appellate court did not consider the application filed on behalf of the petitioner for amendment of the plaint to insert therein the date of sending notice of Talb-e-Ishhad and this non-consideration of the application for amendment has caused prejudice to the petitioner.

4. As against the above, learned counsel for the respondent while supporting the judgments and decrees impugned by the petitioner contended that the petitioner has utterly failed in the performance of requisite talbs and consequently his suit was rightly dismissed by the learned trial Court which dismissal was confirmed by the learned appellate court for valid reasons.

5. I have heard learned counsel for the parties and gone through the available record of the case.

6. Perusal of the case record reveals that though in para No.5 of the plaint the petitioner has averred that he came to know about the sale transaction on 20-11-2002 at 10-00 a.m. through Qudratullah P.W.5 at hotel Gulzaman Chaudhwan on which he announced his intention to pre-empt the transaction. However, in the plaint he has not given any date regarding the date of issuance of notice of Talb-e-Ishhad addressed to the respondent. This failure of the petitioner is sufficient to non-suit him. Reliance is placed on a case reported in 2009 SCMR 3 wherein their Lordships have held as under:-- "It is by now the settled law that it would be mandatory for plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-e-Muwathibat and date of issuing the notice of Talb-e-Ishhad in terms of section 13 of the Act, otherwise plaintiff's deserved to be dismissed."

7. Another important aspect of the case is about the performance of Talb-e-Ishhad by the petitioner. Neither he nor his two witnesses of notice of Talb-e-Ishhad have deposed before the court that in their presence the petitioner at the time of scribing notice ibid did refer to his Talb-e-Muwathibat. According to the provisions of Khyber Pakhtunkhwa Pre-emption Act 1987, a pre-emptor in order to succeed in establishing his right of pre-emption must perform Talb-e-Ishhad by establishing evidence which fact has to be proved by two truthful witnesses. Mere sending a notice to a vendee is not sufficient for succeeding in a pre-emption suit. Apart from sending a notice, the pre-emptor must establish and prove that at the time of scribing notice as envisaged under section 13 of the Act ibid, he did confirm before the witnesses his Talb-e-Muwathibat. Unless and until Talb-e-Ishhad is performed in the above manner, a pre-emptor would not be able in establishing his right of pre-emption.

8. Regarding the plea of the counsel for the petitioner that no order has been passed by the learned appellate court on the application of the petitioner moved for amendment of the plaint, suffice it to say that such application though remained undecided by the learned appellate court but such application was with intent to inject a new life in the litigation which has been put at rest and also to fill a lacuna in the case which attempt cannot be allowed. Wisdom is derived from a judgment of the honourable Supreme Court reported in 2013 SCMR 23 whereby their Lordships have held as under:-- "Quite apart from this since a pre-emption case under the latest dispensation is more like a criminal case and a plaint in the former is almost like an F.I.R. in the latter, no omission however, fatal it may be, can be allowed to be supplied by means of amendment. In case it is done by means of amendment, it would open room .for additions, afterthoughts and improvements which would go ad infinitum. Neither the pre-emption nor the criminal case with this modus operandi would admit of an end in the mundane existence of the parties. We, therefore, have committed no error much less patent on the .face of the record by declining the prayer for amendment of plaint and dismissing the appeal of the petitioner".

9. For what has been discussed above, it is held that the petitioner has failed in the performance of the requisite talbs prescribed by law and as such his rights of re-emption are extinguished. Both the courts below have concurrently endorsed the fact that there is failure on the part of the petitioner in the performance of necessary talbs. Such findings are not open to any interference by this court. Therefore, the instant revision petition being bereft of any merit is hereby dismissed. AG/607/P Revision dismissed.