2006 PLP 4 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

These two connected petitions have been directed against the judgments, dated 15-4-2004 passed by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, whereby two civil revisions arising out of two separate suits for pre-emption were disposed of.

2. The relevant facts giving rise to these petitions are that the two independent transactions of sale of land of even date entered into by the petitioners (vendees) were pre-empted by Muhammad Nawaz, respondent herein, by way of filing the two separate suits for possession through pre-emption in the Civil Court at Attock. The suits were ultimately dismissed by the learned trial Judge, vide separate judgments dated 6-3-2003 and the appeals preferred by the pre-emptor were also dismissed by a learned Additional District Judge, Attock, vide' consolidated judgment, dated 19-4-2003. The pre-emptor invoked the revisional jurisdiction of the High Court by way of filing civil revisions in the Lahore High Court, Rawalpindi Bench, and a learned Judge in Chambers having reversed the concurrent findings of two Courts on the question of performance of Talb-e-Ishhad, dismissed the suits. The plea of the pre-emptor was that he, having made Talab-i-Muwathibat on 27-4-1998 of sale taken place on 25-4-1998, sent a notice of Talb-e-Ishhad in writing duly attested by two witnesses on 30-7-1998 under registered cover acknowledgement due in compliance of the provisions of section 13(3) of Punjab Pre-emption Act, 1991 whereas the petitioners (vendees) denying the service of notice of Talb-e-Ishhad, pleaded that requirement of Talb-e-Ishhad was not fulfilled in accordance with law. The Court of first instance as well as the Appellate Court concurrently having come to the conclusion that the requirement to Talb-e-Ishhad was not established, dismissed the suits but the learned Judge in the High Court, after detail examination of evidence, held that Talb-e-Ishhad was performed in accordance with section 13(3) of Punjab Pre-emption Act, 1991. The reliance was placed on Abdul Malik v. Muhammad Latif 1999 SCMR 717 wherein it was held that Talb-e-Ishhad being procedural in nature, could not be considered mandatory for non-suiting the pre-emptor on the ground of its non-compliance.

3. Learned counsel for the petitioners contended that the actual service of notice of Talb-e-Ishhad is necessary to establish the requirement of performance of Talb-e-Ishhad for enforcement of right of pre-emption and without proving of this essential condition, the right of pre-emption is deemed to have been extinguished. The learned counsel in support of his contention, has placed reliance on Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651 wherein it was held that performance of Talb-e-Ishhad is most important condition for enforcing right of pre-emption.

4. There can be no cavil to the legal position that for exercise of right of pre-emption, the performance of Talb-e-Muwathibat and Talb-e-Ishhad in terms of section 13 of the Punjab Pre-emption Act, 1991, is essential. Talb-i-Muwathibat is the first demand through which a pre-emptor on coming to know about the sale immediately declares his intention to exercise right of pre-emption and Talb-e-Ishhad is second demand which is made in the manner as provided in section 13(3) of the A (ibid) Act, not later than two weeks from the date of knowledge and making of Talb-i-Muwathibat. The requirement of Talb-e-Ishhad is made by sending the notice in writing attested by two truthful witnesses under registered cover to the vendee and the compliance of this condition in accordance with the provisions of section 13(3) of (ibid) Act, would give rise to presumption that the notice was duly served but this is a rebuttable presumption and if it is proved that the notice of Talb-e-Ishhad was not served, the suit may fail. Therefore, the real proposition for consideration in the present case would be whether actual service of notice upon the vendee is necessary or the service by sending the notice of Talb-e-Ishhad in compliance of the provisions of section 13(3) of Punjab Pre-emption Act, 1991, at the address of ordinary residence of the vendee is sufficient to serve the purpose of law. Section 13(3) (ibid) provides as under:-- "

13. Demand of Pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely: (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-e-Khusumat. Explanations I. "Talb-e-Muwathibat" means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Note. Any words indicative of intention to exercise the right of pre-emption are sufficient. II. "Talb-i-Ishhad" means demand by establishing evidence. III. "Talb-e-Khusumat" means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat. (3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption. Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."

5. The plain reading of the above provision of law would show that service of notice of Talb-e-Ishhad at the ordinary postal address of the vendee under registered cover acknowledgement due, is sufficient. In the present case, notice (Exh.P.1) was sent in writing duly attested by two witnesses under registered cover on 30-7-1998 at the ordinary place of residence of petitioner which was received by his representative at his residence and in proof of the service of notice, the postal receipt (Exh.P.6) and acknowledgement due (Exh.P.5) were placed on record.

6. Learned counsel for the petitioner contended that during the relevant period, Muhammad Daud, petitioner, was in Saudi Arabia and was not available at his ordinary place of residence, therefore, the notice having been not personally served upon him, the requirement of Talb-e-Ishhad was not fulfilled and the learned Judge in the High Court by misreading the evidence, reversed the concurrent findings of the two Courts on the question of fact, in the revisional jurisdiction.

7. There is no cavil to the proposition that without fulfilment of the requirement of performance of Talb-e-Muwathibat and Talb-e-Ishhad, the right of pre-emption cannot be exercised and the performance of these Talbs must be specifically proved through the evidence. The notice of Talb-e-Ishhad is sent through registered post acknowledgement due in the manner as prescribed in law and in the areas in which postal service is not available, oral intimation is sufficient, therefore, the sending of notice of Talb-e-Ishhad by post under registered cover acknowledgement due attested by two truthful witnesses and the receipt of notice by the pre-emptor directly or indirectly, is considered' sufficient compliance of law. It may be seen that the Punjab Pre-emption Act, 1991, was enacted in the light of judgment of Shariat Appellate Bench of this Court in Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 wherein it was held that for exercise of right of pre-emption, pre-emptor must fulfil requirement of Talb-e-Muwathibat and Talb-e-Ishhad and in case of non-performance of these essential conditions, the right of pre-emption is extinguished. The concept of law of pre-emption is that a stranger should not be allowed to purchase the property in preference to the persons who have the first right of purchase C but at the same time the condition of Talbs for exercise of right of pre-emption has been provided in law to discourage unnecessary litigation. The purpose of giving the notice of Talb-e-Ishhad is to acknowledge the right of pre-emption and to convey the intention of exercising such right by way of filing the suit. This notice is in fact an intimation and prior information to the vendee of the suit and thus, the service of notice either in person or through an agent is sufficient. In the present case, the perusal of record would show that the pre-emptor having specifically pleaded in the plaint of making Talbs, has also brought on record oral and documentary evidence to prove the service of notice of Talb-e-Ishhad in the manner as prescribed in section 13(3) of Punjab Pre-emption Act, 1991, therefore, the requirement of giving information to the vendee for filing suit was properly fulfilled and thus, the suit could not be defeated on the basis of technical objection that notice was not served in person.

8. We in the light of the statutory provisions and the law laid down by this Court, having heard the learned counsel for the petitioner and considered the contentions raised by him in support of these petitions, find that requirement of performance of Talb-e-Ishhad was sufficiently established on record and the two Courts subordinate to the High Court through misreading of the evidence having drawn a wrong conclusion dismissed the suit and this error was rightly corrected by the High Court in its revisional jurisdiction. We having not been able to find out any factual or legal infirmity or jurisdictional error in the judgment of the High Court find no substance in this petition.

10. For the reasons given above, both these petitions are dismissed. Leave is refused. M.H./P-42/S Petition dismissed.