2013 PLP 721 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Facts giving rise to this appeal by leave of the Court briefly stated are that respondent who was at the relevant time a minor filed a suit through her mother Mst. Riaz Bibi pre-empting the sale dated 27-6-1996 bearing mutation No. 1840 on the ground of being Shareek Khata, Shafie Shariq, Shafi Khalit and Shafi Jar. In terms of the divergent pleas, following issues were framed:-- "(1) Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP (2) Whether ostensible sale price of Rs. 5,15,000 was fixed in good faith or actually paid? OPD (3) If issue No. 2 is not proved what was market value of suit land at the time of sale? OPPs (4) Whether plaintiff validly performed necessary talbs in exercise of right of pre-emption? OPP (5) Whether the defendant is entitled to receive any special costs from plaintiff if so, how much? OPD (6) Whether plaint is deficient court fee, if so, what is correct valuation? OPD (7) Whether defendant is entitled to receive any incidental charges of impugned sale, if so, to what extent? OPD (8) Whether suit is barred by time? OPD (9) Whether plaintiff is estopped to file this suit? OPD (10) Whether the plaintiff has filed the suit without valid appointment of next defendant/guardian? OPD (11) Relief."

2. The learned trial Court dismissed the suit vide its judgment and decree dated 2-12-2000 in terms of its finding on issue No. 4 holding that respondent had failed to prove performance of Talb-e-Muwathibat and Talb-e-Ishhad as required in law. This judgment and decree was reversed in appeal vide the judgment dated 29-8-2002 whereby the learned Additional District Judge allowed the appeal of the respondent/plaintiff. This judgment was challenged in Civil Revision No.2142 of 2002 which has been allowed by the learned High Court holding that the trial Court had non-read material evidence on record on issues of Talbs; that appellant/defendants had not assailed the finding of civil court about Talb-e-Ishhad and have not assailed the finding on any other issue. Leave was granted by this Court in terms of the order dated 9-9-2011, which reads as follows:-- "Inter alia, contends that the learned trial Court had dismissed the suit of the respondent-plaintiff but the learned appellate court vide judgment dated 29-8-2002 reversed the judgment and decree and decreed the suit and the learned High Court vide the impugned judgment has affirmed the said decree. Contends that the respondent plaintiff had failed to prove Talb-e-Ishhad in as much as mere production of a postal receipt has not been considered by this court to be sufficient proof of service of notice which point has not been considered concurrently. Relies on the judgment of this Court reported as Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). (2) Having heard learned counsel for the petitioners at some length, leave is granted, inter alia, to consider the issue raised. In the meanwhile, status quo shall be maintained."

3. Learned counsel for the appellants in support of this appeal submitted that the learned High Court has misread the material evidence on record; that a bare reading of the statements of P.W.1 Riaz Bibi, P.W.2 Bati Khan and P.W.3 Anwaar Shah would indicate that the respondent/plaintiff had failed to prove Talb-e -Muwathibat. He contended that even the service of notice of Talb e-Ishhad on Muhammad Akram appellant/defendant had not been proved and that the suit merited to be dismissed in view of the law laid down by this Court in Abdul Aziz v. Fateh Muhammad (2007 SCMR 336), Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), Muhammad Bashir v. Abbas Ali Shah (2007 SCMR 1105) and Fazal-ur-Rehman v. Khurshid Ali (2012 SCMR 635).

4. Learned counsel for the respondent/plaintiff, on the other hand, defended the impugned judgment by submitting that there are concurrent judgments and decrees decreeing respondent/plaintiffs suit and the finding of fact so rendered cannot be interfered with unless there is some material non-reading or misreading of evidence. Referring to the plaint, he contended that all the essential particulars of performance of Talb-e-Muwathibat had been given therein in support of which evidence was led; that even notice of Talb-e-Ishhad was duly served on Muhammad Akram appellant through his brother Munawar as he was abroad. Such a service should be presumed as a service in law and respondent cannot be non-suited merely on this ground as on merit his right to pre-empt the sale has not been disputed.

5. Having considered the submissions made in the light of the evidence on record, we find that although the mother of the respondent/plaintiff in para 3 of the plaint had given the name of the source, time, date and place where she performed Talb-e- Muwathibat but the names of persons in whose presence this was made is not mentioned. While appearing as P.W.1 she did not mention the date, time and year of performance of Talb-e -Muwathibat. Similarly P.W.2 Bati Khan also does not mention the date, time and place of this Talb.

6. The omission to mention the material particulars of performance of Talb-i-Muwathibat, referred to in the preceding paragraph, adversely reflects on the credibility of the performance and is fatal in a suit for pre-emption. In decreeing the suit both the Courts below, we may observe with respect, have misread and non-read material evidence on record and have also not appreciated the mandate of the law laid down by this Court. In Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), this Court laid down that the omission to mention the material particulars is sufficient to non-suit the pre-emptor. At page 308, it was held as follows:-- "Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit."

7. The afore-referred view was reiterated in Abdul Aziz v. Fateh Muhammad (2007 SCMR 336) wherein at page 343 it was held as under:-- "In pre-emption suit without pleading the source of information and performance of Talbs in the plaint, the pre- emptor may not be in a position to prove the knowledge of sale on the date on which he claimed to have made Talb-e- Muwathibat. This Court, no doubt in Noor Muhammad v. Abdul Ghani 2000 SCMR 329 has observed that the pre -emptor is not required to give name of the witness in the plaint as the facts required to prove through evidence need not to be specifically mentioned in the pleadings but without pleading the basic facts, it is not possible to lead evidence on such facts and for exercise of right of pre-emption, performance of Talbs is the basic fact and not merely a formality, therefore, the pre-emptor must specifically plead and prove the performance of Talbs strictly in accordance with law to maintain the suit. Talb-i-Muwathibat is the foundation for exercise of right of pre-emption and without proving its performance strictly in accordance with the spirit of law, the performance of second Talb i.e. Taib-i-Ishhad cannot be successfully established to succeed in the suit."

8. In Fazal-ur-Rehman v. Khurshid Ali (2012 SCMR 635), this view was again reiterated wherein at page 640 while accepting the appeal and dismissing the suit for pre-emption, it was observed as follows:-- "Assuming that the particulars as to the date, time and place of making immediate demand and demand through notice being particulars of evidence, need not be mentioned in the plaint, yet respondent cannot defend the impugned judgments when these particulars have not been mentioned even in his evidence recorded in the court. These particulars in the first instance were required to be stated in the court by the respondent himself as was held in the cases of Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957) and Mst. Lalan Bibi v. Muhammad Khan (2007 SCMR 1193). But where he opted not to appear as a witness of his own without there being any disability on his part, these particulars ought to have been mentioned by his attorney in his evidence. A look at the statement of the attorney would reveal that he, too, did not mention any of these particulars. Though he stated that he received information about the sale on 16-11-1993 but when and where did he inform his brother and what was the time therefor have not been mentioned. Against this backdrop it can well be said that the respondent could not prove the requisite demands in accordance with the requirements of law."

9. So far as Talb-e-Ishhad is concerned, admittedly the service on one of the two petitioners-defendants/vendees namely Muhammad Akram was not personally effected and according to learned counsel for the respondent, it was effected on his brother and co-vendee Munawar Hussain appellant. The afore-referred service is not a service in the eyes of law. It is not the case of respondent/plaintiff either that service of notice of Talb-e-Ishhad on the said vendee was made through registered post acknowledgement due. The contention that service on the co-vendee should be presumed as service in law is not backed by any provision of law and therefore, is not tenable.

10. For what has been discussed above, this appeal is allowed and the impugned judgments of the learned High Court as also of the learned Additional District Judge are set aside and the judgment and decree of the trial Court dated 2-12-2000 dismissing the suit of the respondent/plaintiff is restored. MWA/M-21/SC Appeal allowed.