P L D 2012 Peshawar 112 (PLP)

YAHYA AFRIDI, J.--Through this single judgment, this Court shall decide the two civil revisions titled Muhammad Ayub v. Muhammad Gul (C.R. No.47/2004) and Khan Gul v. Muhammad Ayub (C.R. No.1/2008), as common questions of law are involved therein.

2. In Muhammad Ayub's case (C.R. No.47/2004) the two Courts below had rejected the claim of Muhammad Ayub, as he did not appear in person and instead deposed through his attorney to prove Talb-i-Muwathibat, which was declared by the Courts not to fulfil the mandate of section 13 of the N.-W.F.P. Pre-emption Act, 1987 ("Act").

3. In Khan Gul's case (C.R.No.1 of 2008) the appellate Court had accepted the appeal of the pre-emptor namely, Muhammad Ayub and remanded the case to the trial Court to decide the same on merits. The Appellate Court held that it was not mandatory for a pre-emptor to appear in person to prove 'Talb-e-Muwathibat' as provided under section 13 of the Act. This Court appreciates the research and effort made by the Appellate Court in rendering its decision.

4. The learned counsel representing Muhammad Ayub in C.R. No.47/2004 vehemently argued that the august Supreme Court of Pakistan in case titled Muhammad Hanif v. Mst. Munawar Bi (1998 SCMR 223) had clearly held that an attorney could prove 'Talb-i-Muwathibat; that the rule laid down in Muhammad Hanif's case (supra) was not adhered to in subsequent judgments of the apex Court in case titled Abdul Oayyum v. Muhammad Sadiq (2007 SCMR 957) and Mst. Hussan Banu v. Waliur Rehman (2007 SCMR 1344) and this was contrary to the established practice that once a bench of a Court had rendered its opinion on an issue of law, the same had to be followed or else referred to a larger Bench of the same Court; that in Abdul Qayyum's case (supra) the right of pre-emption had been described as 'piratical', which was contrary to the basic canons of Islamic jurisprudence. Reliance was also placed on PLD 1993 Karachi 237, PLD 1966 SC 854, PLD 1963 SC 296 and PLD 1991 SC 546.

5. The learned counsel representing Muhammad Ayub in C.R. No.1/2008 vehemently argued that under the Islamic law, a pre-emptor need not appear as a witness and may prove his Talb-i-Muwathibat through an attorney; that a party to a civil suit is not a competent witness and his absence to appear in the witness box should not prejudice his case; that the provisions of Article 129 (g) of the Qanun-e-Shahadat Order, 1984 would not apply to a pre-emptor, as he is not competent to appear as a witness; that the exclusion of the provisions of Section 120 of the Evidence Act, 1872 in the Qanun-e-Shahadat Order, 1984 further supports the proposition of the party; that the provisions of Articles 3, 17 and 163 of the Qanun-e-Shahadat Order, 1984, when read together would clearly provide that the pre-emptor need not appear as a witness in his own cause; and that Order XVIII, Rule 2 of the Code of Civil Procedure, 1908 ("CPC") also supplements the contention that a party need not appear as a witness in his own cause; and that the provisions of the Enforcement of Shariah Act, 1991 and N.-W.F.P. Shariyat Act, 2002 clearly provides that the principles of Islamic Law, as ordained in Quran and Sunnah, shall reign supreme and the interpretation, which is inconsonance with that of Holy Quran and Sunnah would always prevail. Reliance was placed on Kitab-e-Shahadat at Chapter No.6, Mishkat Sharif Hadis No.3588, Ainul Hidaya 387 and Dore Mukhtar 299 and Fitawae Alamgiri 247.

6. The learned counsel representing Khan Gul in C.R. No.1 of 2008 and Mehar Gul in C.R. No.47/2004 vehemently opposed the contention of the learned counsel for Muhammad Ayub in both the petitions and rigorously contended that the issue in hand had been settled once and for all by the apex Court in Abdul Qayyum's case and Mst.Husan Bano's case (supra), whereby the suit of the preemptor was dismissed as he did not appear in person to prove Talb-i-Muwathibat. Reliance was also placed on Falak Sher v. Mir Qalam Khan (1995 CLC 1077), Amir Badshah v. Aminul Haq (2005 CLC 325) and Rashid Khan v. Misal Khan 2011 YLR 1488.

7. The valuable arguments of the learned counsel for the parties heard and record of the case thoroughly considered.

8. The essential and common facts in both the cases are that Muhammad Ayub is the common preemptor and he has averred in his pleadings in both cases that he had personally performed the Talb-i-Muwathibat'; stating therein, the time, place and manner in which it was performed. It is also a common fact in both the petitions, that there was no explanation on the record, why Muhammad Ayub, the pre-emptor, did not appear in person to prove the said Talb-e-Muwathibat and also that the preemptor produced his attorney to prove the performance of his said 'talb'.

9. It is in this factual background that this Court has to determine, whether the Talb-e-Muwathibat in both the cases were proved by Muhammad Ayub, the pre-emptor, as is required and mandated under section 13 of the Act.

10. The provision of section 13 of the Act reads as follows: "

13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-- (a) Talh-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-i-Khusumat (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat (3) Subject to his ability to do so, where a pre-emptor has made "Talb-i-Muwathibat under subsection (2), he shall as soon as thereafter as possible but not later than two weeks from the date of notice under Section 32 or knowledge, which ever may be earlier, 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...." While determining the legal significance of an attorney in pre-emption cases, the aforementioned section of the Act cannot be read in isolation. In this regard, our attention is attracted to section 14 of the Act, which reads as:-- "

14. Demands by the guardian or agent.-- Where a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf." In view of the clear mandate of the statute, a validly appointed "agent" can make and perform the requisite 'talbs' on behalf of the "principal". However, in the present cases, 'Talb-i-Muwathibat' had been performed by the pre-emptor himself and not by his lawfully appointed agent. Hence, this section would not come to the rescue of Muhammad Ayub, the pre-emptor in both the cases.

11. Now, reverting back the scope of section 13 of the Act, this Court notes that it describes the various 'talbs', the manner of their performance and the required witnesses for its proof. Interestingly, for 'Talb-i-Muwathibat, there is no prescribed mode, manner or number of witnesses stated therein. However, as far as Talb-i-Ishhad is concerned, subsection (3) of Section 13 of the Act not only prescribes the manner and mode but the number of witnesses required for its performance.

12. The significance and the true purport of 'Talb-i-Muwathibat' has been a matter of intense discussion in various judgments of the august Supreme Court of Pakistan. The matter was finally settled by the august Supreme Court of Pakistan, while rendering its land mark judgment in case titled Mian Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302). This judgment of a Bench consisting of five Hon'ble Judges of the Supreme Court has held that the mentioning of time, date and place of 'Talb-i-Muwathibat' was a 'sine qua non' for proving the same, as required under section 13 of the Act and stated; "However, we agree and endorse the view in both the judgments that there is no necessity of mentioning the names of the witnesses because then it would be a departure from the ordinary law of pleading as provided in Order VI, Rule 5, C.P.C. as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the court for the redressal of grievance. Subsequently, therefore, we endorse the view taken in the judgments and approved that a plaint wherein date place and time of 'Tab-e-Muwathibat' and date of issuing the notice of performance of 'Talb-i-Ishhad' in terms of notice 13 of the Act is not provided it would be fatal for the pre-emption suit". (Emphasis provided).

13. In view of the above decision, it is but settled that the particulars of Talb-i-Muwathibat' have to be strictly included and mentioned by the preemptor in his plaint or else his claim was to fail. Corollary to the above, the proof of the said 'talb' has also to be strictly proved by the preemptor. This had led this Court in Falak Sher Khan's case (supra) followed by Amir Badshah's case (supra) and finally Rashid Khan's case (supra) to hold that 'Talb-i-Muwathibat' performed by the preemptor himself was special and personal and thus could not be proved through an attorney. The august Supreme Court of Pakistan has also in Abdul Qayyuni's case and Mst. Hussan Bano's case (supra) confirmed the view taken by this Court in the aforementioned cases and held that;-- "He was appointed by the preemptor 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."

14. It would, however, not be legally appropriate for this Court to lay down an absolute rule that in no case, can a pre-emptor prove his 'Talbs' through an attorney. This generalization would defy the basic principles of 'proof' as laid down in Qanun-e-Shahadat Order, 1984. There can be situations where the 'buyer' admits the claim of the preemptor or there are legal presumptions in favour of the pre-emptor and thus denying the preemptor of the fruits of his rights of pre-emption because he did not appear as a witness to prove the same, would not be legally correct. There may also be situations, where the pre-emptor for being frail, ill or for any other just and reasonable cause is unable to attend to the Court, may appoint an attorney to depose on his behalf. It is in this context that the august Supreme Court of Pakistan in Muhammad Hanif's case (supra) allowed the pre-emptor to prove his 'Talb-i-Muwathibat' through an attorney, as she was an old lady. The august Court held that; "

5. So far as the second contention of the learned counsel is concerned, according to him, it was incumbent on the respondent to herself step into the witness-box and give evidence. The learned counsel has argued that as the respondent led evidence before the learned trial Court through her husband and attorney, presumption should have been drawn against her under clause (g) of Article 129 of the Qanun-e-Shahadat Order, 1984. The said clause provides that-- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

6. This contention, in our opinion, also appears to be clearly misplaced. What clause (g) of Article 129 appears to be referring to is evidence and not witness. Since in the present case, evidence in respect of the Talb was produced by the respondent although, instead of her, her attorney stepped into the witness-box, reference to Article 129 of the Oanun-e-Shahadat is completely misconceived. As learned Judge in the High Court has already observed, the petitioner being an old woman was within her right to lead evidence in the Court through her attorney who could lawfully give evidence on her behalf, we, therefore, find no force in the second contention of the learned counsel as well."

15. Keeping the 'ratio decedendi' of all the judgments of the august Supreme Court of Pakistan referred to hereinabove, this Court finds that there is no conflict between the judgments rendered by the august Supreme Court of Pakistan in Abdul Qayyum's case and Mst.Hussan Bano's case with that of Muhammad Hanif's case. Each case is based on its own peculiar facts.

16. In view of the 'ratio decedendi' of the judgments of the apex Court in Abdul Qayyum and Mst.Hussan Bano's case (supra), it would be safe for this Court to state that, Talb-i-Muwathibat is a personal right, which requires direct evidence to prove the performance thereof; regarding the hearing or knowledge of the sale and the intention and the act of performing the 'jumping talb'. The failure of the pre-emptor to prove the said 'facts' would surely adversely affect his claim. However, the aforementioned statement is not absolute. This Court cannot shut its eyes to the judgment of the apex Court in Muhammad Hanifs case, wherein under special circumstances of old ages, exception was made to the said general rule. It may be noted that the special circumstances, claimed by the preemptor should be clear, real and reasonable for the Court to allow an attorney to prove the 'talbs' of the preemptor. However, once the evidence of the attorney to prove the 'talbs', is allowed by the Court due to special circumstances, then the attorney's evidence would be tested on the touch stone of its relevancy, authenticity and proof.

17. Now to the requirement of a party to be a witness in his own cause. There is neither an express bar nor a requirement for a party to appear as a witness in his own cause under the Qanun-e-Shahadat Order, 1984. In ordinary cases, 'facts' constituting the claim of the party, have to be proved, through direct oral of documentary evidence, as provided under Article 70 read with 71 of the Qanun-e-Shahadat Order, 1984. This in no way would render the claim of a party to be summarily dismissed, just because he did not appear as a witness to depose and prove his claims. But in cases of pre-emption, where Talb-i-Mutwathibat has to be proved and that too strictly. The proof of the said condition precedents of hearing about the sale or knowledge thereof and announcing the 'jumping' 'talb' would surely require the direct oral evidence of the preemptor himself. The failure of the pre-emptor to appear as a witness would have fatal consequences unless he brings his case within the exemption rule laid by the apex Court in Muhammad Hanif's case (supra).

18. The legal discourse rendered hereinabove leads this Court to the following; (i) The scheme envisaged under Qanun-e-Shahadat Order, 1984 does not provide for a party to appear as a witness. It also does not impose any express bar upon a party to appear as a witness in support of the claim sought. (ii) In ordinary civil cases, a party if he is able to prove his case through direct oral or documentary evidence or admissions of the other party or on the basis of presumptions, the absence of the party to appear as witness would not be fatal to the claim sought. (iii) In cases related to pre-emption, where the party himself was the preemptor and exercised his Talb-i-Muwathibat, which required strict proof of the knowledge of the sale, his intention and the announcement of 'jumping talb', the non-appearance of the preemptor, would be fatal to the claim sought. (iv) The rule stated hereinabove, for the pre-emptor to appear in person to prove his 'talbs', is not absolute. There may be. exceptions to the said rule, in cases where the pre-emptor, other than the situation envisaged under Section 14 of the Act, brings on record special circumstances, whereby it is not reasonably possible for the pre-emptor to appear in person, then on the satisfaction of the Court, the preemptor may appoint an attorney to prove his 'talbs'. However, the evidence so rendered would be tested on the touch stone of the principles of relevancy and proof as envisaged under the Qanun-e-Shahadat Order, 1984.

19. Accordingly for the reasons stated hereinabove, this Court holds that; (i) Muhammad Ayub v. Muhammad Gut (C.R.47/2004) is dismissed being devoid of any legal merit, as the pre-emptor Muhammad Ayub did not appear personally to prove the performance of his 'Talb-i-Muwathibat' and more so when no special circumstances were brought on record to show why he was unable to prove the same in person and an attorney was appointed to prove the same. (ii) Khan Gul v. Muhammad Ayub (C.R.No.1/2008) is accepted and the impugned judgment and decree of the appellate Court dated 29-10-2007 is set aside and the judgment and decree of the trial Court dated 15-2-2005 is maintained, as the pre-emptor Muhammad Ayub did not appear personally to prove the performance of his 'Talb-i-Miawathibat' and more so when no special circumstances were brought on record to show, why he was unable to prove the same in person and an attorney was appointed to prove the same. No order as to costs. H.B.T./365/P Order accordingly.