2013 PLP 1033 (CLC)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of impugned orders dated 16-2-2010 and 15-6-2011. Through the former learned trial Court dismissed the application of the petitioner under Order VI, Rule 17 of C.P.C. and through the latter the learned lower Appellate Court dismissed the revision petition of the petitioner filed against the order of the learned trial Court.

2. Learned counsel for the petitioner contends that the learned courts below erred in law while passing impugned orders; that inadvertently the petitioner could not mention the time, place and date of performance of Talb-i-Muwathibat in his plaint and the said mistake can be cured through seeking amendment of plaint; that the Hon'ble apex Court in case reported as Mian Pir Muhammad v. Faqir-Muhammad PLD 2007 SC 302 has observed that the "plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing of notice of performance of Talb-i-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit." Adds that the said judgment was pronounced on 12-12-2006, whereas, the petitioner has filed instant suit in the year 2001 as such the said judgment would not apply retrospectively, however, there is likelihood that the learned trial Court would non-suit the petitioner on that technical ground; that the proposed amendment would not change the nature of suit; that the impugned orders of the learned courts below are not sustainable in the eyes of law and liable to be set aside.

3. Conversely, learned counsel for respondents Nos.3 to 5 vociferously defended the impugned orders while arguing that the proposed amendment would entirely change the nature of plaint; that the petitioner has not made Talbs in accordance with the law and the respondents have raised specific point in their written statement in this regard and granting the petitioner permission for making proposed amendments would tantamount to overcome the objection of the respondents; that the proposed amendments would change the entire nature of the suit; that the impugned orders of the Courts below are well-reasoned and needs no interference by this Court in its Constitutional jurisdiction.

4. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

5. The right of pre-emption is a very feeble right and in order to succeed in the same a pre-emptor has to fulfil the requisite Talbs as envisaged in section 13 of the Punjab Pre-emption Act, 1991. In the present case bare perusal of the plaint of the petitioner would reveal that the petitioner did not disclose the date, time and place of making Talb-i-Muwathibat which is very fatal in a pre-emption suit. The contention of the learned counsel for the petitioner that the Hon'ble Supreme Court of Pakistan in Mian Pir Muhammad's case supra pronounced the judgment on 12-12-2006 and the said judgment would have no retrospective effect in the suit pending prior to said judgment is concerned the same is misconceived. Performance of requisite Talbs is envisaged in section 13 of the Punjab Pre-emption Act which was promulgated in the year 1991 and all the suits for pre-emption filed after this enactment should be in consonance with the said Act. The Act ibid requires performance of Talbs in particular manner and a pre-emptor has to perform the same in that manner. Even otherwise, dictum laid down in Mian Pir Muhammad's case supra will be applicable to the pending cases. Reliance is placed on case reported as Mst. Bashiran Begum v Nazar Hussain and another (PLD 2008 SC 559), wherein it has been laid down as under:

"According to the dictum laid down by the Larger Bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending cases."

6. In a suit for pre-emption it is mandatory for the pre-emptor to mention the requisite particulars of Talbs in the plaint and any omission in this regard is fatal and is not a curable defect which can be cured through filing application under Order VI, Rule 17 of C.P.C. The respondents in their written statement categorically stated that the petitioner has not fulfilled the requisite Talbs in accordance with law and granting the petitioner an opportunity to fill up that lacuna by way of amendment would adversely affect the rights of respondents. In case reported as Karamat Ali Shehbaz v. Muhammad Zulqarnain (PLD 2009 Lahore 356), it has been laid down as under:

" The assertions of the two Talbs and averments in this behalf in the plaint are foundational and vital to the case of the pre-emptor to propound and sustain his right at the very inception of the lis and any omission is fatal; thus, such an omission is not a mere defect, which can be termed to be inadvertent or a curable, rather it is a fundamental flaw, which in the pre-emption cases cannot be allowed to be supplied and rectified. And if it is so permitted through an amendment of the plaint, it shall tantamount and shall be analogous to the change of the nature of the case and/or the defence, which according to the settled laws regarding the amendment of the pleadings cannot be granted; besides, it shall defeat the mandate of section 13 of the Act; and where a proposed amendment amounts to infringe and frustrate the law and destroy a right accrued to the opposite, such an amendment is impermissible by virtue of Order VI, rule 17, C.P.C."

7. For the reasons discussed supra, the learned trial Court was fully justified in declining the application of the petitioner for amendment of plaint, which has rightly been maintained by the learned lower Appellate Court. Learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned orders warranting interference by this Court in its constitutional jurisdiction. Resultantly, instant writ petition stands dismissed with no order as to costs. MH/A-16/L Petition dismissed.