1989 PLP 2478 (CLC)

Mian Muhammad Ishaq Sahoota for Respondent. Date of hearing: 30th April, 1989. This revision petition arises out of a suit for possession pre‑emption, filed by the petitioner on 19‑2‑1986, in the Court of Senior Civil Judge, Burewala, district Vehari. Right of Pre‑emption was claimed on the ground of being a co- sharer in the suit land and Collateral of the vendor. 1t was decreed on 8‑2‑1987 on the basis of compromise between the parties.

2. The petitioner pre‑emptor was directed by the Trial Court to deposit the decretal amount upto 25‑4‑1987. He was unable to arrange the amount and on 23‑4‑1987 made an application for extension of time. The application was rejected by the learned Civil Judge on the same day. The petitioner filed a revision petition before the learned District Judge on 25‑4‑1987. It was admitted to regular hearing and the operation of the decree was stayed till the next date i.e. 30‑4‑1987. On 30‑4‑1987 the petitioner again requested for extension of time for depositing the decretal amount which was disallowed by the Court. The revision petition was dismissed on 2‑5‑1987. The petitioner filed an application on the same day for permission to deposit the decretal amount and actually deposited the same on 3‑5‑1987.

3. The petitioner filed an application for execution of the decree which was dismissed by the executing Court on 25‑6‑1987 on the ground that the suit stood dismissed due to non‑deposit of decretal amount. The petitioner preferred an appeal which, too, was dismissed by the learned Additional District Judge, Vehari, vide his judgment and decree dated 16‑7‑1988. Hence this petition.

4. There is no need to go into the question as to whether the decretal amount could be legally deposited till 3‑5‑1987 or not because the petition merits dismissal on the ground that the decree passed by the trial Court after 31‑7‑1986 was a nullity in the eye of law. The learned counsel appearing, on behalf of the petitioner urged that the parties had entered into a compromise and the Court was bound to pass a decree in favour of the petitioner/plaintiff by virtue of provisions of Order XXIII rule 3 of the C.P.C. On the other hand the learned counsel for the respondent submitted that the Court had no jurisdiction to pass decree after the target date fixed by the Supreme Court in the case of Govt. of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC

360. He further submitted that in the absence of the legal Talabs the petitioner had no legal right which could be enforced through the Court.

5. The petitioner had claimed the right of pre‑emption on the ground of being collateral of the vendor and co‑sharer in the disputed land. The right of pre‑emption on the ground of being a co‑sharer was not declared to be repugnant to the injunctions of Islam and remained intact. However the survival of the said right was closely linked with legal Talabs as explained in Said Kamal's case. Talabs are sine qua non for the survival and enforcement of the right of pre emption. In the case in hand the suit was instituted on 19‑2‑1986 and nothing was said about Talabs in the plaint. The only averment made in para.6 was that although the respondent was told to accept. the petitioner's right of pre‑emption on receipt of Rs.30,000 but the defendant/respondent after putting of the matter for sometime, refused to accept the same about 20 days before the institution of the suit. This averment did not conform to the requirement of legal Talabs under the Islamic Law. Under the said `law three Talabs are essential; (i) Talab‑I Mowasibat (immediate declaration of intention to assert right of pre‑emption on receiving information of the sale: (ii) Talab‑i.-Ishhad or Talab‑i‑Taqrcer. (This means the affirmation of the intention to assert the right in the presence of the witnesses. While making Talab‑i‑Ishhad the pre‑emptor has to specifically declare in the presence of the witnesses that he had made Talab‑i‑Mowasibat at a particular time earlier). Thereafter comes the third and the last stage of Talab‑i Khasoomat which pertains to institution of the suit for pre‑empting the disputed property. It was held in the case of Ghulam Qadir v. Nawab Din PLD 1988 SC 701):‑. "the first two Talabs besides being the most important edifice of Islamic Shufa, are highly specialized. The dining therein is to be co related to the original transaction. Their forms also are very essential and important besides being indispensable. If they fail, no claim in the third Talab can stand. Hence it was not open to the Court to decree the suit even on the basis of the compromise between the parties because the defendant/respondent could not waive the requirement of talabs. Had the necessary facts regarding legal Talabs been stated m the plaint and then the defendant/respondent agreed to the suit being decreed then the Court could have validly decreed the same. There is no substance in the argument of the learned counsel for the petitioner that the Court A was bound to decree the suit by virtue of Order XXIII rule 3 of the C.P.C. on the basis of the compromise between the parties. The pre‑condition in the said provision of law is a "lawful" agreement between the parties. In the present case the agreement was not lawful because Talabs were neither asserted in the plaint .nor verbally admitted by the defendant/respondent in her statement. The mere agreement that the suit be decreed on payment of Rs.66,000 was obviously not lawful and could not form basis of a decree in favour of the petitioner. In view of the above discussion there is no merit in the revision petition which is dismissed, leaving the parties to bear their own costs. M.A.K./H‑137/L Petition dismissed,