1995 PLP 1854 (MLD)

‑‑‑‑ Fact which had not been pleaded could not be allowed to be proved. Qadeer Ahmad Siddiqi for Appellant. Shahzad Shaukat, Muhammad Nawaz and C.M. Sarwar for Respondents. Date of hearing: 12th July, 1995. The relevant facts for the decision of this second appeal are that the respondents purchased land measuring 71 Kanals 19 Marlas situated in Chak No.178/GB, Tehsil Gojra, District Toba Tek Singh through oral sale, which was reflected in the revenue record through Mutation No. 535 attested on 30‑7‑1989 for a total consideration of Rs.4,20,

000. The appellant filed a suit to pre‑empt the sale. The respondents resisted the suit amongst others on the ground of lack of `Talabs'. The plaint was initially rejected by the trial Court vide judgment and decree, dated 20‑6‑1990 on the ground that the suit was instituted at the time when there was no codified law. The plaintiff subsequently moved an application under section 36 of the Punjab Pre‑emption Ordinance, 1990 on 8‑10‑1990, which was accepted by the trial Court vide order dated 26‑5‑1991. The result was that the suit was restored. The respondents thereafter moved an application on 17‑11‑1991 for dismissal of the suit on the ground that there is no Talb‑i‑Ishhad through legal notice under section 13(3) of the Punjab Pre‑emption Act, therefore, the right if any of the plaintiff stands extinguished. The trial Court after hearing the arguments accepted this application and once again rejected the plaint under Order VII, Rule 11, C.P.C. vide judgment and decree, dated 6‑1‑1992, which was assailed through an appeal before the First Appellate Court, which confirmed the finding of the trial Court and dismissed the appeal with costs vide judgment and decree dated 26‑1‑1993. Therefore, now this second appeal, which was admitted to hearing and notice was issued to the respondents, who have appeared through Mr. Muhammad Shehzad Shaukat, Advocate and contested the appeal.

2. The learned counsel for the appellant argued that in the Chak of the appellant there is no Post Office facility, therefore, Talb‑i‑Ishhad was made verbally as is permissible under proviso to section 13(3) of the Punjab Pre -emption Act as pleaded in para. 4 of the plaint. It is added that the trial Court acted in haste while rejecting the plaint. It should have allowed the appellant to prove lack of facility of the Post Office.

3. On the other hand, the learned counsel for the respondents argued that the appellant has not pleaded that there is no Post Office facility in the locality, therefore, Talb‑i‑Ishhad was made orally and that too within 15 days, therefore, it could not be allowed to prove this fact. The learned counsel in this behalf has referred to Muhammad Riaz v. Mst. Sakina and another (PLD 1993 Lah. 60), Khalilur Rehman v. Mrs. Rashida (1993 CLC 2237), Al‑Athar Limited and 4 others v. Sajjad Hussain (1993 MLD 1353), Muhammad Zafar Iqbal v. Imam Ali and 2 others (1992 CLC 200), Aisha Bi and 5 others v. Muhammad Hanif (1992 ALD 568), Rehmat Masih v. Ch. Hukum Dad (1992 ALD 571(1)), Gulzar Ali and another v. Abid Essa Bhai and 2 others (1992 AID 171), Mst. Jannat Bibi v. Sher Muhammad and others (1988 SCMR 1696). It is added that when a party claims benefit of a proviso or exemption then it has to plead and prove the special facts to bring up case under the proviso or claim exemption. The learned counsel in this behalf has referred to Lahore Textile & General Mills Ltd. v. Islamic Republic of Pakistan (PLD 1988 Lah. 461) and Messrs Central Cotton Mills Ltd. v. Collector of Central Excise & Land Customs and 3 others (1992 CLC 841). It is argued in the third place that the sale took place on 30‑7‑1989 while the suit was filed on 19‑12‑1989, therefore, was barred by limitation. It is submitted that during the interregnum period from 1‑8‑1986 to 28‑3‑1990 the suits of pre‑emption were governed by Personal Law and the suit was to be filed without any delay. It is added that in the cases reported as Government of N.‑W.F.P, through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360) and Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 it was held that during this period the limitation would be deemed, four months and not a year. The arguments are summed up with the submission that the appellant mala fide did not value the first appeal for the purposes of court‑fee properly and avoided the payment of the court‑fee on the same. The First Appellate Court has rightly held that the court‑fee as required under the law was not affixed on the memorandum of appeal and on account of contumacious conduct the appellant was not entitled to any indulgence.

4. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, provisions of Punjab Pre -emption Act and precedents. Before proceeding any further it is worthwhile to refer to section 13(3) of the Punjab Pre‑emption Act, 1991, which reads as under:‑‑‑ "(3) Where a pre‑emptor has made Talb‑i‑Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb‑i‑Ishhad, by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre‑emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre‑emptor to give registered notice, he may make Talb‑i‑Ishhad in the presence of two truthful witnesses." The admitted position is that the appellant did not make Talb‑i‑Ishhad under the main provision through a notice in writing attested by two truthful witnesses sent under registered cover acknowledgment due. It is also admitted that it was not pleaded that owing to lack of post office facility Talb‑i‑Ishhad A was made orally in the presence of two truthful witnesses. It is settled law that a fact which has not been pleaded cannot be allowed to be proved. The learned counsel for the respondents has rightly referred to the cases of Muhammad Riaz, Khalfur Rehman, Al‑Athar Limited and 4 others, Muhammad Zafar Iqbal, Aisha Bi and 5 others, Rehmat Masih, Gulzar Ali and another and Mst. Jannat Bibi (supra). In this behalf reference can also be made to the judgment reported as Tasleemullah Director, Saleem Sons Ltd. v. Mst. Khalida Khanum (PLD 1994 Lah. 423).

5. This is not all. The plaintiff is claiming benefit of proviso to subsection (3), therefore, he has to clearly plead the facts entitling him to the benefits of the proviso or in other words he was to justify absence of notice as g required under subsection (3). It is for the party claiming benefit of a proviso to the general law to clearly plead the circumstances entitling it to benefit of exception and only then it can be allowed to prove the same. In this behalf, reference can be made to Muhammadi Steamship Co. Ltd. v. The Commissioner of Income‑tax (Central), Karachi PLD 1966 SC 828, Messrs Rehmat Ullah & Sons v. The Commissioner of Sales Tax (1974 SCMR 127), Messrs Central Cotton Mills Ltd. and Lahore Textile & General Mills Ltd. (supra). The plaint was rightly rejected in view of the judgments in the cases of Muhammad Iltaf v. Muhammad Nawaz (1992 MLD 1207), Mst. Ayesha Bibi v. Muhammad Sajid and another (1995 SCMR 294) and Pervaiz Anjum Ghauri and another v. Abdul Rahim and 3 others (1995 SCMR 299) referred to by the learned counsel for the respondents.

6. Now coming to the point of limitation. The suit was patently time barred having filed after more than four months. The learned counsel for the respondents rightly referred to the judgment of Hon'ble Supreme Court in the case of Haji Rana Muhammad Shabbir Ahmad Khan (supra). The appellant has failed to make out a case for interference in second appeal.

7. The upshot of the above discussion is that this appeal is dismissed with costs. AA./A‑850/L Appeal dismissed.