P L D 2006 Peshawar 151 (PLP)

MUHAMMAD RAZA KHAN, J.

This judgment will also dispose of the connected C. R. No.56 of 2005, as the common question of fact and law are involved in both these cases and the parties and the nature of transaction is also identical.

2. The respondents/defendants had purchased property, as stated in detail in the head note of the plaint through mutations No.157 and 158 attested on 18-12-1999. Syed Nawaz Khan plaintiff/petitioner had filed two pre-emption suits against the vendees with regard to the said three transactions. The suits were contested. After recording evidence the learned Civil Judge vide his judgments and decrees dated 12-1-2004 dismissed the suits primarily on the ground of non-performance of Talb. Appeals were filed which were decided by the learned Additional District Judge Bannu on 23-10-2004 and the appeals were also dismissed. These judgments have been challenged in these revision petitions.

3. I have listened to the comprehensive arguments on behalf of the parties and scanned the record, particularly the evidence and the impugned judgments.

4. In these cases the petitioner/plaintiff has been non-suited merely on the ground that one of the witnesses of Talb-e-Muwathibat has stated that he was present with the plaintiff7pre-emptor when the information about the sale was transmitted to them by the informer whereupon the plaintiff/pre-emptor made Talb-e-Muwathibat there and then. In the said statement there is only one word which has compelled the Courts to dismiss the suits of the plaintiff. The witnesses have stated that the said Talb was made on the day of Sunday i.e. (C)'Z i)' ). The entire evidence was to the effect that the Talb-e-Muwathibat was made at 8-00 p.m. on Sunday but because of the use of word ( v.' ) by the witness the Courts were of the view that it indicated the morning time and not the evening one. On the basis of this minor and ignorable discrepancy, the suits have been dismissed.

5. Learned counsel for the respondent/vendee argued that the observations of both the Courts are justified for the reason that making of Talb was an Islamic concept and had to be specifically proved to be properly complied with and that it was not a mere ritual but substantive rights were created by the said compliance.

6. There is no denial of the fact that Talb-e-Muwathibat and Talb?e-Ishhad have to be established but the legal formality with regard to Talb-i--Muwathibat is that plaintiff/pre-emptor should declare his intention to pre-empt on receipt of information about the sale transaction of a property over which his right of pre-emption extends. The Talb has to be made before the dispersal of the assembly in which the information was transmitted. In these cases the date, time, place and day along with names of the informers and the witnesses were properly disclosed in the respective plaints, but on the basis of the said minor defect in evidence, the suit were dismissed. The minor discrepancies in evidence can be ignored, however, the major contradictions can be considered, whereby the fact of compliance of Talb-e-Muwathibat in accordance with legal requirements appear to have been negated, particularly when Talb-i-Muwathibat is not made in the said assembly, where the information was transmitted. The purpose is that the intention to pre-empt a transaction should be declared openly and inunediately on the receipt of information about the sale, and that it should be done within the assembly i.e. Majlis where the information was transmitted. The period of Talb-i-Ishhad is counted from the date of Talb-i-Muwathibat. Another objective of the strict application of requirement of Talb-i-Muwathibat is to avoid the possibility of afterthoughts and manipulations. Every care has to be taken by the learned Courts to analysis the strict compliance of said requirements to achieve the objectives thereof. However, in the obsessions of taking extraordinary care, the Courts may not use the requirements of Talb-i-Muwathibat as a tool to non-suit the plaintiff/pre?emptor. In these cases the learned courts have dismissed the pre-emption suits by presuming the non-performance of Talb-e-Muwathibat through the wrong interpretation and twisting the plain language.

7. The pre-emption suits have been dismissed only on a solitary word in the statement of a witness of Talb-e-Muwathibat where he states that he was present with the pre-emptor at 8-30 hours on the "day of Sunday" when the information was transmitted and the Talb-e-Muwathibat was made. In the plaint as well as in the notice Talb-e-Ishhad the time has been disclosed as 8-30 p.m. and it is in evidence that it was "Isha" time. It is only in the lunar calendar that the day starts from the evening of the previous night, but under the solar calendar, the entire day including the evening and the night following the same is considered to be apart of the day and, therefore, 8-30 p.m. of Sunday shall be called a part of the same day. Normally while translating the local dialect into Urdu it is sometimes recorded as ( ) and sometimes it is recorded as ( ). Both the phrases mean the same thing. Unless the terms morning is mentioned in the evidence, the mere use of word ( ) does not deny the fact that the time referred to in the statement was not 8-30 p.m. Thus the entire case cannot be thrown out merely on the use of the said phrase and that too in the translation. Hence it can be believed that the said witnesses were present with the pre-emptor at 8-30 p.m. on Sunday when the information was communicated by the informer and Talb-e-Muwathibat was made by the plaintiff/pre-emptor.

8. Learned counsel for the respondent also took exception to another fact that in the statement of the plaintiff/pre-emptor where he produced the copies of notice Talb-e-Ishhad in evidence and objection was raised that being photostat copies the document was not admissible in the evidence for want of the original and this objection was sustained by the learned trial Court. On the basis of this observation the learned counsel for the respondent argued that notice Talb-e-Ishhad was not proved because in the absence of the original the copy was not admissible in evidence and since the permission for secondary evidence was not obtained, therefore, the notice was not proved.

9. This argument was negated by the next sentence in the same examination-in-chief where the plaintiff states that the original notices were dispatched through registered post but on their return being undelivered the original notices in the envelopes were placed on file. It is also in evidence that one envelope was opened in the Court and the original notice Exh.PW-8/2 was recovered from envelope as appearing in the statement of Mir Ali Shah Petition Writer. Thus the original notices were dispatched. They were not accepted by the vendees. The notices with envelopes were placed on file and proved in evidence. So this requirement was also properly complied with.

10. The market value of the property has been held by both the Courts to be in accordance with the documents. The vendees have admittedly paid of sum of Rs.15,000 and Rs.16,000 for the said transactions and the same shall be considered to be the market value payable by the plaintiff/pre-emptor.

11. It was also pointed out that mutations Nos. 157 and 158 were not attested on the date when the suits were instituted and therefore, it was argued that the suits were premature. This objection is also not tenable for the reasons that the vendees/respondents had admitted the sale in the written statements and under the pre-emption law the permanent transfer can be challenged through pre-emption suit despite the fact that the entire sale consideration is not paid by the time of institution of suit. Thus the suits were not premature.

12. The result of the foregoing discussion is that the findings of both the Courts are held to be the result of misreading of evidence and, therefore, these revision petitions are allowed, the judgments and decrees are set aside and the suits are decreed in favour of the plaintiff/pre?emptor on payment of Rs.15,000 and Rs.16,000 respectively as the pre-emption amount. A part of the amount is presumed to be deposited at the time of the institution of suit and the balance shall be deposited in 30 days hereafter, failing which the decree shall be void and the suits shall be deemed to have been dismissed. No order as to costs. S.A.K./95/P???????????????????????????????????????????????????????????????????????????????????????? Revision accepted.