2011 PLP 1112 (MLD)

ATTAULLAH KHAN J.

Rabnawaz Khan, plaintiff/petitioner, through the instant civil revision petition filed under section 115, C.P.C. has questioned the findings of the Appellate Court dated 21-9-2005 vide which his suit for pre-emption filed against the defendant Khan Bahadur was dismissed by accepting appeal.

2. Briefly stated facts of the case are that the plaintiff/petitioner had sued the defendant/respondent for pre-emption in respect of the suit-land fully described in the plaint for enforcement of his superior right of pre-emption on the basis of contiguity, co-sharership, immunities and appendages. It was further claimed in the plaint that the actual price of the suit-land was thirty thousands rupees but in order to defeat his pre-emptive rights, an inflated and exaggerated amount of R.75,000 was mentioned in the suit mutation.

3. The defendant contested the suit by filing written statement. The divergent pleadings of the parties gave rise to the framing of as many as seven issues, whereafter evidence of the parties was recorded and the learned trial Judge on hearing pro and contra arguments, decreed the suit of the plaintiff whereagainst appeal of the defendant/respondent was accepted by the appellate Court vide judgment and decree dated 21-9-2005.

4. Not satisfied, the plaintiff has assailed the judgment and decree of the appellate Court through the revision petition in hand. '

5. Learned counsel for the petitioner argued that the learned appellate Court has mis-interpreted the evidence by concluding that the plaintiff failed to perform Talb-e-Muwathibat properly as well as Talb-e-Ishhad. According to the learned counsel, the exact date was not mentioned by the petitioner in his statement before the trial Court which is a mere slip of tongue and it is ignorable. According to him, the demands were made in accordance with section 13 of the N.-W.F.P. Pre-emption Act, 1987, therefore, the revision petition is liable to be accepted.

6. On the other hand, learned counsel for the respondent contended that the petitioner/plaintiff was not only required to mention the date, time and place in the plaint but also in the evidence which was omitted, therefore, Talb-e-Muwathibat was not performed properly. Regarding Talb-e-Ishhad, he submitted that similar is the fate of Talb-e-Ishhad which is not within time if calculated from the own statement of the plaintiff/petitioner made in cross-examination while appearing in the trial Court.

7. I have carefully gone through the record and considered the submissions of the learned counsel for the parties.

8. I would first discuss Talb-e-Muwathibat which is the first requirement for the pre-emptor for enforcement of his superior right of pre-emption. According to the learned counsel for the petitioner, the non-mentioning of exact date in the statement of the plaintiff before the Court is mere slip of tongue and being minor in nature has to be ignored. He relied upon 2009 SCMR 642.

9. I have gone through the said judgment of the honourable apex Court, wherein instead of mentioning the date of Talb-e-Muwathibat as 27-8-2000, the plaintiff had mentioned the said date as 27-9-2000. That error was rectified by the Lahore High Court as a slip of tongue and treated the same as 27-8-2000 instead of 27-9-2000. The fact involved in the reported case was really a slip of tongue and was correctly rectified, but the facts in this case are quite different. It is not an error of mentioning a date but the plaintiff has entirely omitted to mention the same at all. The learned counsel also referred to PLD 2005 Peshawar

261. I have gone through the said reported case wherein the appellate Court has given undue importance to a minor slip of tongue of a witness of the plaintiff. The error .was regarding the absence of respondents abroad in Saudi Arabia and no error regarding date of performance of talb-e-muwathibat was involved and thus this case cannot be relied upon.

10. The plaintiff/pre-emptor appeared in the trial Court as P.W.3 and stated as below:-

11. The above statement made during examination-in-chief reveals that the plaintiff/pre-emptor has disclosed that he was informed by one Mosam Khan informer at about 4-00 p.m. while sitting in his house some 2/3 months back. He has omitted to mention the exact day, month and year. It is not clear whether he was informed two or three f months prior. If it is taken as two months prior, the performance of Talb-e-Muwathibat would come after 2/3 months of receiving information which is not in accordance with the provisions of section 13 of the N.-W.F.P. Pre-emption Act, 1987, according to which the pre-emptor is required to express his intention in the same sitting and meeting where he received information about the sale.

12. So the statement of the plaintiff regarding the time of his knowledge has made the performance of Talb-e-Muwathibat defective and against the provision of law.

13. Moreover, in the plaint, the plaintiff/pre-emptor has given a definite date, time and place. In para-3 of the plaint, it is stated that on 22-4-2004 at about 4'O clock at digar vela in his house in presence of two witnesses, he performed Talb-e-Muwathibat by declaring his intention to pre-empt the suit property. These contents have not been affirmed by the plaintiff while appearing before the trial Court. In this way, the evidence recorded by the plaintiff as his own Court witness about the time of making Talb-e-Muwathibat was in conflict with the case set up by in the plaint. Reliance is placed on PLD 1998 SC 121, wherein it has been held that if a plaintiff/pre-emptor produces evidence about the' time of making Talb-e-Muwathibat in conflict with the case set up in the plaint, it would make the said Talb as defective, because he is required to give date, time and place in the plaint as well as in the evidence. He has failed to comply the said provision in his statement before the Court. I also rely upon 1998 CLC 1829 wherein the same principle has been laid down. So in view of the statement of the plaintiff/pre-emptor, the trial Court has rightly held that Talb-e-Muwathibat was not established.

14. Coming to Talb-e-Ishhad, I may again refer to the above deposition made by the plaintiff in the Court about the timing of his gaining knowledge, i.e. 2/3 months prior. According to his statement reproduced above, he got notice of Talb-e-Ishhad scribed after two months of knowledge. If we calculate this period, it would come to 4 or 5 months after the gaining of knowledge. It is again violation of the provisions of section 13 of the Act ibid, whereunder the pre-emptor is required to make Talb-e-Ishhad by sending notice as soon as possible but not later than two weeks.

15. As stated above, the plaintiff has himself stated before the Court that two months after the Talb-e-Muwathibat and gaining knowledge, he gave notice of Talb-e-Ishhad. This is again not within time as required by law, therefore, the same is defective and not in accordance with the t requirements of law laid down.

16. The result of my above discussion is that the learned appellate Court has drawn a correct conclusion based on evidence of the parties and I find no illegality therein which is accordingly upheld.

17. Consequently, finding no substance in this revision petition, the same is, therefore, dismissed leaving the parties to bear their own costs. H.B.T./158/P Petition dismissed.