2005 PLP 1921 (CLC)

(4) Whether the plaintiff has exercised his right of pre-emption through Talbs in the manner prescribed by Islamic Law? OPP (5) Whether the plaintiff fulfilled the requisites of Zarar and Zaroorat as laid down by Islamic Law? OPP (6) Whether the plaintiff has waived his right of pre-emption by his own conduct? OPD (7) Whether the plaintiff is estopped by his own words and conduct to file this suit? OPD (8) Whether the report of the Ahl-e-Commission is liable to be set aside? OPD (9) Whether the vendees/defendants have effected any valid improvements over the suit-land. If so, when, to what extent and with what effect? OPD (10) Whether the vendees/defendants are entitled to incidental charges, if so, to what amount? OPD (11) Whether the plaintiff has no cause of action and locus standi to bring this suit? OPD (12) Whether the suit has not been correctly valued for the court-fee and jurisdiction. If so, its effect and what is the correct valuation? OPD (13) Whether the suit has been filed with mala fide intention. If so, its effect? OPD (14) Whether the defendants are entitled' to special costs under section 35-A, C.P.C., if so, to what extent? OPD (15) Relief.

4. Parties were put to trial and the learned Civil Judge, vide judgment and decree, dated 18-9-1997 dismissed the suit by returning his findings on the issue of waiver and also that the respondent/plaintiff has failed to establish Talb-e-Ishhad. Aggrieved of the judgment and decree, the respondent/plaintiff preferred an appeal and the findings of the learned trial Court on both the issues have been reversed and the 'suit has been decreed by the learned Appellate Court, vide judgment and decree, dated 2-6-1998.

5. Learned counsel for the appellants contends, that the respondent/plaintiff through the document Exh.D.1 had categorically agreed and admitted that the land shall not be purchased by him and he shall have no objection if it is sold to anyone including the present vendees; this document has been taken into account by the learned trial Court while holding that the pre-emptor/plaintiff has waived his right, but the learned Court of appeal, without upsetting the findings about the execution of Exh.D.1 by the respondent/plaintiff has held the issue of waiver against the appellants, on the ground that waiver cannot be pressed into, because a person simply being a witness to a transaction of having knowledge otherwise, if does not assert his right, would not be deemed to have waived. In this regard, the learned Appellate Court has relied upon the judgments reported as 1988 CLC 1001 and PLD 1972 SC

133. On the issue about the making of Talb-e-Ishhad, the view taken by the learned Court of appeal is, that the said notices have been sent to the correct address of the vendees and have been accordingly received by Talib Hussain, their general attorney. Learned counsel for the appellants on this issue has argued, that the power of attorney is required to be strictly construed and there is no power conferred upon Talib Hussain to receive the notices; thus, any notice issued to the vendees namely Muhammad Ashraf, Muhammad Asghar and Ghulam Nabi shall be deemed to be in non-compliance of the provisions of subsection 3 of section 13 of the Punjab Pre-emption Act, and, therefore, such suit against them cannot sustain.

6. I have heard the learned counsel for the parties. As far as Exh.D.1 is concerned, the plaintiff who is alleged to have executed the same, has appeared as a witness, but this document has not been confronted to him at all. It is not even put him in the cross-examination that the document bears his signatures. Moreover, D.W.1 Muhammad Ramzan states to have written the document and witnessed the same, but this is contradicted by D.W.2 Muhammad Arshad, who is another marginal witness to the document, when he states that it is not written by Muhammad Ramzan. From this quality of evidence, I am not convinced, if the appellants were able to prove Exh.D.1 on account of which, it can be held that the respondent/plaintiff has waived his right to file the suit for pre-emption.

7. As regards the question about the valid issuance of notice of Talb-e-Ishhad is concerned, the appellants might have had a good case, if they were not sued on the same address and had not appeared on account of the summons issued to them on the address given. In the plaint, their address, given is Chak No. 374/JB, Tehsil and District Toba Tek Singh and in response to the notice issued, they put in their appearance. Notice of. Talb-e-Ishhad had also been issued to the appellants on the same address, meaning thereby, that the appellants are the permanent residents of Chak No.374/JB, Tehsil and District Toba Tek Singh and the notice of Talb-e-Ishhad was sent to them on the correct permanent address, which notice was otherwise received by their general attorney. Therefore, on this account also, it cannot be held that there is any defect in making of the Talb-e-Ishhad, warranting for the interference in the findings of the learned Court of appeal. In the light of above, I do not find any merit in this appeal, which is hereby dismissed. However, it is stated by the learned counsel for the appellants that the learned Court of appeal has not given any time regarding the deposit of the balance sale price. Confronted with the above, learned counsel for the respondents states that as per his information, the same has already been deposited. Be that as it may, while considering the above question, I have perused the order-sheet and find that the operation of the impugned judgment and decree was suspended by this Court on 18-6-1998 and if, on account of the above, the amount of balance consideration has not been deposited, no prejudice can be, caused to the respondents. Therefore, I grant the respondents one month time from today to deposit the balance sale price, if not so far deposited with the trial Court, otherwise their suit 'shall be deemed to have been dismissed. H.B.T./M-1217/L Appeal dismissed.