2006 PLP 2405 (YLR)

JAWWAD S. KHAWAJA, J.

The respondents/plaintiffs/pre-emptors filed a suit seeking possession of the suit property through pre-emption. The suit was dismissed by the learned trial Court on 8-6-1994, inter alia, on the ground that the respondents had failed to prove that they had performed the requisite Talbs. An appeal was filed by the respondents, which was dismissed by the learned appellate Court, in an earlier round of litigation, on 14-4-1997. However, the respondents preferred a revision petition (C.R. No.1158 of 1997), which was allowed by a learned Bench of this Court on 6-4-1998 and the case was remanded to the learned appellate Court, on the ground that the learned appellate Court had not considered the oral evidence while dealing with the question of Talbs.

2. After remand, the learned appellate Court has allowed the appeal and decreed the suit of the respondents/plaintiffs, holding that they had fulfilled the requirements of Talbs.

3. The first contention of learned counsel for the petitioner is that in their plaint the respondents had not mentioned the time, date and place of Talb-e-Muwathibat and nor had the name of witnesses of the Talb been mentioned. It was argued that, by now, it is settled that the time of making Talb-e-Muwathibat is a material fact required to be pleaded in the plaint because the timely performance of Talb-e-Muwathibat and Talb-e-Ishhad can only be established if the time, at which Talb-e-Muwathibat was made, is definitely stated and proved. To support his contention, learned counsel for the petitioner referred to the case titled Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 Supreme Court 315) and the case titled Muhammad Sarfraz Khan v. Aman Ullah Khan (2005 CLC 1133).

4. Learned counsel for the respondents, however, referred to the case titled Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs and another (2000 SCMR 314) and the case titled Haji Noor Muhammad through his legal heirs v. Abdul Ghani and 2 others (2000 SCMR 329) to argue that it was not necessary to set out the details of the Talb -e-Muwathibat such as time, date, etc. in the plaint. These precedents support the argument of learned counsel for the respondents. However, learned counsel for the petitioner pointed out that both cases, cited by learned counsel for the respondents, are based on the same ratio and the said ratio, as enunciated in the case of Altaf Hussain, supra, has been considered by a learned Bench of the Honourable Supreme Court in the case titled Haji Muhammad Saleem v. Khuda Bakhsh, which is later in time. This, indeed, is so, and this precedent has been followed by a learned Bench of this Court in the case titled Muhammad Sarfraz Khan v. Aman Ullah Khan. In this view of the matter, I hold that the respondents must fail because they did not specify in their pleadings the time of the making of Talb-e-Muwathibat.

5. Even on facts, I would dismiss the suit of the respondents/plaintiffs. It is relevant to note that the respondents, who are three brothers, jointly filed a suit to pre-empt the sale in question. Only one of them, namely, Ghulam Yasin (respondent No.1) appeared as P.W.1, while the other two did not enter the witness-box to testify on oath and to submit to cross-examination. It is true that Ghulam Yasin was an attorney of the other two respondents/plaintiffs. It is also correct that he testified that all three brothers were present in the assembly where they received information of the sale and all three made TaIb-e-Muwathibat there and then. However, this alone does not absolve the other two plaintiffs from appearing in Court to state facts for proving that they were, in fact, present in the same assembly and had made Talb-e-Muwathibat. Here I may add that the petitioner/defendant was entitled to cross-examine the other two brothers under oath and to elicit facts, including possible admissions or contradictions between the testimony of the three brothers had they all appeared as witnesses, in order to impeach their veracity. The appearance of the one of the brothers cannot be a substitute for the other two for this reason.

6. In the foregoing circumstances, I find that the respondents/plaintiffs have failed to prove performance of the requisite Talbs. In the circumstances, the impugned appellate decree is not sustainable and is set aside. As result, the decree of the learned trial Court dated 8-6-1994 stands restored. M.H./A-95/L Revision allowed.