P L D 1991 Lahore 60 (PLP)

Subsection (2) of S. 36 of the Punjab Pre-emption Ordinance, 1990 provides in effect that the limitation prescribed for suits of pre-emption in section 31, and the manner of making the three talabs provided in section 13 would not apply to the suits mentioned in subsection (1) and that for such suits the period of limitation shall be one year and that instead of establishing the making of three talabs in the prescribed manner, it shall be sufficient if the pre-emptor establishes that he had made `Talb-i-Ishhad' in the presence of two truthful witnesses. The two aspects which flow from subsection (2) are that, the suits which were instituted during the specified period or the suits which were pending during the said period but were dismissed, by whatever forum after the target date and prior to the promulgation of the Ordinance dated 28th March, 1990, the period of limitation is one year and that the making of `Talb-i-Ishhad' in any case is sine qua non for successfully exercising the ,right of pre-emption. It is also obvious that the decrees or orders of dismissal passed in the suits in which the right of pre-emption claimed is one which is not available under the Ordinance e.g. relationship with the vendor, being the heir or a collateral, ownership in the estate, though the suit was instituted or was pending in the specified period, have not been rendered ineffective by virtue of the provisions contained in section 36 of the Ordinance. The section would also not apply to those suits though instituted or pending during the specified period in which right claimed is one as is available under the Ordinance but the same had been filed beyond the period of one year of the accrual of cause of section. This is apparent from subsection (2) and the intention appears to provide for the same period of limitation as was available under the law of pre-emption previously in force. Secondly, the provision that "it shall be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad in the presence of two truthful witnesses" reaffirms the necessity of making the Talb-i-Ishhad at the proper time before the institution of the suit. It does not contemplate providing of an opportunity to establish through production of evidence, the making of Talb-i-Ishhad at relevant time, if none had in fact been made or could have been made. The legislature cannot be attributed the intention of providing an opportunity to the litigants to first make a false plea by seeking amendment of the plaint and then to produce perjured or false evidence. [p. 71] E Subsection (2) of section 36 thus, recognizes the making of Talb-i-Ishhad as prerequisite for the exercise of right of pre-emption. This talab of necessity must have been made prior to the institution of the suit within one year of the sale transaction. [p. 731 H (f) Punjab Pre-emption Ordinance (XVI(1 of 1990)

S. 36(2)

Provision of S.36(2) recognises the making of Talb-i-Ishhad as prerequisite for the exercise of right of pre-emption

Such Talab of necessity must have been made prior to the institution of the suit within one year of the sale transaction. Subsection (2) of section 36 thus, recognizes the making of Talb-i-Ishhad as prerequisite for the exercise of right of pre-emption. This talab of necessity must have been made prior to the institution of the suit within one year of the sale transaction. [p. 73] H In case a person in whom a right of pre-emption otherwise vests fails to make the necessary talabs, his right is extinguished and he cannot seek enforcement of such a right, so abandoned and invalidated, by lodging proceedings in a Court. [p. 731 F Without all the demands being made on time there would be no Shuffa as it (the right to Shuffa) would come into existence only through proper talabs. [p. 73] G An applicant cannot be believed, now if he alleges that he had made the talabs and he should be allowed to amend the plaint so as to add an averment to that effect. The Court cannot allow making of such false pleas. The plea that the matter of establishing the making of `Talb-i-Ishhad' be left to the trial Court in the circumstances is not available, rather such a plea in the new dispensation should not have been raised by the suitors nor advanced by the members of the Bar. [~`. 7411 Mushtaq Hussain v. Ali Muhammad PLD 1988 Lah. 722; Hedaya by Hamilton, Vol.t1l, Chap.11, p.550; Sufia Bcgum v. Ibrahim PLD 1989 SC 314; Sher Muhammad v. Allah Ditta PLD 1988 SC 412 and Ghulam Oadir v. Nawab Din PLD 1988 SC 701 ref. (g) Punjab Pre-emption Ordinance (XVIII of 1990)

5. 3

C6urt to seek guidance from the Holy Qur'an, Sunnah and Fiqah in the interpretation and the application of the provisions of Punjab Pre-emption Ordinance, 1990

Before making a claim, every suitor has to see whether his claim or right is recognised by Shariah or it otherwise rightfully belongs to him otherwise it would amount to () i.e. grabbing something which does not rightly belong to him. With the enforcement of Sharia in any facet of our lives, the approach of all concerned must undergo a basic change. Every Muslim coming up with a claim to a Court of law has first to consider whether Sharia i.e. Injunctions of Holy Qur'an and Sunnah grant him such a right or not as the Muslims are ordained to order their lives and affairs in accordance with Sharia. For members of the Bar, now it is tnot a case to be pleaded or defended on the part of the party to be represented but to be a part of the system designed to employ the machinery i.e. administration of justice for finding out the party in whom the right in dispute vests and to ensure the enjoyment of right by the said rightful party. The suitors, the lawyers as well as the ,Courts have now to keep in mind the mandate contained in section 3 of the Ordinance. [p. 74] J ??????????????? Under Islamic standard devouring other's property wrongfully is also greed, usurpation (GHAZAB) and this is prohibited whether one uses the machinery of law to grab something to which he is not lawfully entitled or does it through any other false means. [p. 74] K So the duty of a Muslim (i.e. one who is bound-in covenant with God to abide by His Commands), is to order his life and affairs according to the Dictates and Injunctions of God (Allah), his Master and Creator contained in Holy Our'an and Sunnah of His Apostle. It, therefore, follows that before making a claim, every suitor has to see whether his claim or right is recognized by Shariah or it otherwise rightfully belongs to him or it would amount to (GHAZAB) i.e. grabbing something which does not rightfully belong to him. The endeavour of the lawyers as well as of the Courts would also be to find out `The right' and `its rightful owner' and then ensure enjoyment of the right by its rightful owner. [p. 76] L if a person with thc'hclp of his glib tongue, false evidence or clever reasoning succeeds in getting. the decision of the Court in his favour that does not make him legitimate owner of the right. He as well as his All Knowing Creator Allah knows that he is usurper and as such whatever he gets through illegitimate means is a hell for him. [p. 77] M So for reaping small gains in this world, a Muslim is not expected to grab other's property or right. By infusing such consciousness Sharia paves way for the establishment of orderly society. These are the specific and strict prohibitions in Sharia against usurpation of other's property or right. The machinery of law is thus, to be utilized for arriving at the truth and enforcing the right in favour of the right-holder. A Muslim suitor should be conscious that he is to account for his wordly gains and if anything that he obtains unduly, unjustly or unlawfully, how he is going to explain it to his Creator from whom nothing can be concealed. The purpose of Sharia will be fulfilled only if every one concerned with the enforcement of Sharia acts with this consciousness and ideal. [p. 77] N Sura Al-Baqra: 11: 188; Sura Al-Nisa IV: 29; Sura Nahl. XVI: 90; Sura Takathur CII:1-8; Sura Hashr LIX:7; 3: 77; Sahih Al-Bukhari (English Translation by Dr.Muhammad Muhsin Khan) pp.519-523 and Sahih Muslim English version by Abdul Hamid Siddiqi, Vol.I1I, pp.927-28 ref. (h) Punjab Pre-emption Ordinance (XVIII of 1990)

S. 36

Suits were respectively filed on 2-9-1981, 26-9=1981, 2-2-1973 and 31-5-1983

Plaints showed that applicants could not now urge that Talb-i-Ishhad was in fact made at the relevant time as plaintiffs did not know even the concept of Talabs then

Applicants, therefore, could not urge that Talb-i-tshhad was in fact made at the relevant time. [p. 77] O Muhammad Yunas Uppal for Appellant.