1993 PLP 2437 (CLC)

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑ ‑‑‑‑S.13‑‑‑Demand of Talabs‑‑‑Pre‑emptor, though made a demand of 'Talb‑e Muwathibat', but gave no notice of `Talb‑e‑Ishhad' in writing attested by two Jkruthful witnesses under registered cover acknowledgement‑due to vendee affirming his intention to exercise right of pre‑emption ‑‑‑No averment was found in plaint regarding performance of Talb‑e‑Ishhad and there was not any mention about absence of post office facilities in the area‑‑‑Since performance of Talabs was a substantive part of pre‑emption in law, their performance was required to be expressly inserted in body of plaint for avoiding any concealed surprise upon the vendee ‑‑‑Any defect in performance of Talabs, must adversely react on right of pre‑emption ‑‑‑‑For successfully exercising pre emption right, pre‑emptor was obliged to meticulously observe requirements for Talabs‑‑‑Failure in that behalf must prove fatal to pre‑emption ‑‑‑ Oral compliance with imperative requirements of S. 13(3) was not a proper substitute for it and could not be taken to be its real fulfilment‑‑‑When law required a thing to be done in a particular manner, thing must be done in that manner or not at all. Nazir Ahmad v. King‑Emperor AIR 1936 PC 253(2); Muhammad Amin and 3 others v. Gulab and another 1993 CLC 98 and Said Muhammad Shah v. Ghulam Hussain 1993 CLC 105 ref. (b) Practice and procedure‑‑‑ ‑‑‑‑ When law required a thing to be done in a particular manner, thing must be done in that manner or not at all. Ch. Muhammad Ashraf Azeem for Petitioner. This is a revision petition arising out of a suit for pre‑emption. In order to understand the real points, in issue in this case, it is necessary to state the facts of the case shortly. By Mutation No. 887 sanctioned on 26‑3‑1990, Mst. Hashmat Bibi sold land measuring 1 Kanal, 18 Marlas comprised in Khatas Nos. 234, 235, 238, situate in Chak No. 373/GB, Tehsil Samundari of District Faisalabad to Nek Muhammad son of Ibrahim for sale‑price of Rs.30,

000. Abdul Ghaffar, Nazar Hussain and Ghulam Rasul sons of Munshi claimed pre‑emption in respect of the above sale. Right of pre‑emption was asserted on the ground of co‑ownership in the joint Khata. Mst. Hashmat Bibi was their full sister. Pre‑emption suit was instituted on 30‑4‑1990, in the Court of Civil Judge at Sub‑Division, Samundari. Vendee contested the suit and denied superior right of pre‑emption asserted against him. The trial Court found that like the pre‑emptors, the vendee was also a co‑owner in the joint Khata and divided the land sold in equal shares between them. It gave a half share to the pre‑emptors and allowed the other half to remain with the vendee. In absence of any dispute on the mode of division on account of equality of rights, I do not proper to comment on it. Vendee did not contest the judgment of the trial Court. Pre‑emptors felt aggrieved of it and preferred an appeal in the Court of District Judge, Faisalabad. It was heard by Additional District Judge, who dismissed it on 5‑5‑1993, gave relief to non appealing respondent and dismissed the pre‑emption suit in toto. In doing so, learned Judge relied on the provisions of Order XLI, rule 33, Civil P.C. Aggrieved of his judgment, a revision has been filed in this Court. It was conceded that ,petitioners and the respondent were co‑sharers in Khatas Nos.235 and

238. As for Khata No.234, respondent was not a co- owner in it. There was evidence that the petitioners made a demand of Talb‑e Muwathibat but as regards Talb‑e‑ishhad, gave no notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee affirming his intention to exercise right of pre‑emption. There was no averment in the plaint regarding performance of Talb‑e‑Ishhad by despatch of required notice under section 13(3) of the Punjab Pre‑emption Act, 1991. Further, there was no averment in the plaint about absence of post‑office facilities in the area. For exercise of successful pre‑emption, pre‑emptors were obliged to meticulously observe its requirements. Any failing in this behalf must prove fatal to the pre‑emption. Oral compliance with the imperative requirements of subsection (3) of section 13 was not a proper substitute for it and could not be taken to be its real fulfilment. When the law requires a thing B to be done in a particular manner, the thing must be done in that manner or not at all. Other methods of performance are necessarily forbidden. This was a settled rule of law. It was propounded by the Privy Council in case of Nazir Ahmad v. King‑Emperor AIR 1936 PC 253(2). In Muhammad Amin and 3 others v. Gulab and another, 1993 CLC 98, Said Muhammad Shah v. Ghulam Hussain, 1993 CLC 105, the paramount importance of performance of Talb‑e Ishhad in the manner provided in the Act was highlighted by me. Subsection (1) of section 13 provides that unless the demands of pre‑emption were made, right of pre‑emption of a person shall be extinguished. The argument that substantial compliance with the performance of Talb‑e‑Ishhad orally met the requirement, did not impress me. My one view is that it has to be performed in the strict mode and manner provided in the Statute. Any defect in performance of Talbs must adversely react on the right of pre emption. Since performance of Talbs were a substantive part of pre‑emption in Islamic Law, their performance was required to be expressly inserted in the body of the plaint for avoiding any concealed surprise upon the vendee. For the reasons set out above, I would uphold the judgment of the lower appellate Court and dismiss the civil revision in limine. H.B.T./A‑420/L Revision dismissed.