2007 PLP 957 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment dated 14-6-2004 passed by learned Judge in Chamber of Lahore High Court, Rawalpindi Bench, in a civil revision arising out of a suit for pre-emption.

2. The facts in brief are that respondent claiming superior right of pre-emption, in respect of sale of land in favour of petitioner, vide registered deed, dated 10-4-1995 and having claimed knowledge of sale on 6-8-1995, pleaded fulfilment of the requirement of performance of Talb-i-Muwathibat for exercise of right of pre-emption, immediately on coming to know about the sale and on the same day sent notice of Talb i-Ishhad under registered post acknowledgement due. The suit was contested by the present petitioner mainly on the ground that requirement of Talbs was not fulfilled in accordance with the law. The Court of first instance vide judgment, dated 11-6-2001 dismissed the suit but in appeal filed by the pre-emptor/respondent herein, the Appellate Court decreed the suit which was further maintained by the Lahore High Court, Lahore by dismissing the civil revision filed by the petitioner with the observation that personal appearance of pre-emptor in Court to prove the performance of Talb-i-Muwathibat and Talb-i-Ishhad, was not the requirement of law and instead the performance of these Talbs could be proved by the pre-emptor through his attorney.

3. Learned counsel for the petitioner has contended that the performance of Talb-i-Muwathibat through an attorney, is not in the spirit of law and except in exceptional circumstances, pre-emptor must appear in person in witness-box to prove making of Talb-i-Muwathibat in terms of section 13 of the Punjab Pre-emption Act, 1991, which is the basic Talb for exercise of right of pre-emption. He argued that without proof of the first Talb through the positive and direct evidence, the performance of Talb-e-Ishhad is immaterial and in support of his argument has placed reliance on an unreported judgment of this Court in Mst. Hasan Bano v. Wali-ur-Rehman and others, Civil Appeals Nos.1446 to 1448 of 2000, as well as the judgments of the High Courts in the cases namely Falak Sher Khan v. Qalam Khan 1995 CLC 1077, Amir Badshah v. Amin-ul-Haq 2005 CLC 325 and Irshad Ullah v. Muhammad Arshad 2005 CLC 1774. The learned counsel for the respondent, on the other hand, placing reliance on Muhammad Shafi v. Sikandar Khan 2004 MLD 650 has submitted that a validly constituted attorney is an authorized agent who can competently prove making of Talb-i-Muwathibat on behalf of his principal in a suit for pre-emption and consequently, in the present case the findings of the appellate Court regarding performance of Talb-i-Muwathibat was unexceptional to be interfered in the revisional jurisdiction by the High Court.

4. The perusal of record with the assistance of the learned counsel for the parties would unambiguously show that pre-emptor subsequent to the filing of the suit appointed Sahibzada Khalid Ibrar as his attorney, who appeared as P.W. and stated that information of sale was conveyed to the plaintiff by Mehr Khan on 6-8-1995 and he immediately in the same sitting, made an announcement in presence of witnesses for exercise of right of pre-emption. This witness was admittedly not present in the meeting with pre-emptor and had no direct knowledge about the information of pre-emptor and presence of witness in the meeting in which he claimed to have made announcement rather he was subsequently told by the pre-emptor about the performance of Talb-i-Muwathibat and similarly notice of Talb-i-Ishhad was not sent in his presence. He was appointed by the pre-emptor as his attorney after filing of the suit and had no direct knowledge of the transaction, therefore, notwithstanding the fact that Muhammad Bashir (P.W.3) and Akhtar Hussain (P.W.2) have supported the claim of pre-emptor of performance of Talb-i-Muwathibat, the same is not proved to have been made stricto senso as per requirement of law to succeed in the suit.

5. The right of pre-emption is a piratical right and pre-emptor must prove essential conditions for exercise of such right in accordance with provision of section 13 of Punjab Pre-emption Act, 1991 and without proving Talb-i-Muwathibat, which is foundation for exercise of right of pre-emption, the pre-emptor cannot maintain the suit. There is no cavil to the proposition of law that pre-emptor without proving the performance of Talb-i-Muwathibat and Talb-i-Ishhad strictly in accordance with provision of section 13 of Punjab Pre-emption Act, 1991, cannot succeed. In the present case pre-emptor claimed to have made Talb-i-Muwathibat on 6-8-1995 on the information conveyed to him by the witness but he did not appear in the witness-box to make a statement in affirmative of his claim regarding receipt of information and performance of Talb-i-Muwathibat immediately on receipt of information in presence of the witnesses. This is an admitted fact that attorney of the pre-emptor was not present in the meeting in which he claimed to have performed Talb-i-Muwathibat and had no personal knowledge about the date of sale and making of performance of Talbs by the pre-emptor rather his statement was based on the knowledge of the pre-emptor who despite being available, did not appear in the witness-box. The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be c substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (bid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-i-Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-i-Muwathibat himself and appear in Court in person. In the case in hand, it is an admitted fact that the pre-emptor himself made Talb-i-Muwathibat and was also available both at his ordinary place of residence and business and was not suffering from any disability to appear before the Court. It is also a fact that the attorney of pre-emptor had no direct knowledge of the performance of Talb-i-Muwathibat by the pre-emptor, therefore, his statement regarding performance of Talb-i-Ishhad was based on hearsay knowledge. The proposition was discussed in Muhammad Sharif Khan v. Mst. Ismat Bi and 4 others PLD 1982 SC (AJ&K) 76, Syed Abdul Rasheed v. Mst. Tajunnisa 1982 CLC 954 and Naveed Ahmed v. Naseer Ahmad 2003 MLD 274 and it was held that: "According to the record the agreement to sell pertaining to the suit-land was executed by Qamar Mohi-ud-Din, on 13-9-1972. The said Qamar Mohi-ud-Din executed the sale agreement not only on his own behalf but also as general attorney of the other co-vendors. The said sale agreement (Exh.D.1) was signed by Khan Bahadur, Abdul Rauf Khan D.W.6 as its marginal witness. This marginal witness appeared as a witness for the defence and categorically stated that the suit was got filed by Qamar Mohi -ud-Din through his son Naveed Ahmad (Appellate/pre-emptor) for his own benefit. This was also supported by the statement of Naseer Ahmad who appeared as D.W.8. The suit for pre-emption was filed by the appellant through his mother as next friend under the circumstance, it was necessary for the said next friend namely Mst. Riaz Begum to have appeared as her own witness to support the plea of the pre-emptor. Instead one Aftab Ahmad appeared as P.W.2 as attorney of Mst. Riaz Begum. A close examination of the statement of this witness would show that he was ignorant of the facts of the case in all its material detail."

6. Having heard the learned counsel for the parties and perused the record with their assistance, we have found that the Appellate Court as well as High Court in revisional jurisdiction, without attending the correct factual and legal position held in general terms that a validly constituted attorney could competently prove making of Talb-i- Muwathibat on behalf of the pre-emptor in the suit for pre-emption. After having considered the matter in the light of statutory provisions and the spirit of law on the subject we have found that the High Court having omitted to consider the error of law committed by the Appellate Court in drawing a conclusion contrary to the spirit of law, has failed to exercise revisional jurisdiction in proper manner.

7. In the light of foregoing discussion, we convert this petition into an appeal, set aside the judgment of the High Court and while dismissing the suit for pre-emption, restore the judgment of trial Court. This appeal is accordingly allowed with no order as to costs. S.A.K./A-16/SC Appeal accepte