2007 PLP 2776 (YLR)

SYED ZAHID HUSSAIN, J.

Suit to pre-empt the transaction of sale dated, 25-1-1988 instituted by the respondents was decreed by the trial Court on 14-4-1993 where-against appeal preferred by the petitioner was dismissed on 25-1-2000. This is revision petition by the vendee/defendant qua the same.

2. The learned counsel have been heard. The controversy converges about the issue of performance or otherwise of Talbs in accordance with law, which was covered by issue No.8. The learned counsel for the parties are atone that the fate of other two revision petitions that is C.R. No.489 of 2000 and Civil Revision No.512 of 2000 also is dependent upon the similar conclusion, thus, these three petitions will stand disposed of through this judgment.

3. Although there are concurrent findings by the Courts below qua issue No.8 yet since the controversy as to performance or otherwise of Talbs is crucial to the very claim and right of the preemptors/plaintiffs/respondents, it has been considered in the light of the pleadings, evidence and the law applicable. In paragraph 3 of the plaint, the material facts are missing as to when and where the respondents/plaintiffs acquired knowledge I about sale. Even the witnesses produced by them apart from the appearance of Muhammad Hayat (P.W.3) plaintiff, did not advance the case of the pre-emptor as they failed to disclose the essential and material facts. The assertion made in the pleadings and the evidence led thereafter lack the essential factual and legal test. The latest view expressed by the Larger Bench' of the Hon'ble Supreme Court of Pakistan in Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) in particular, the relevant part thereof is reproduced as follows:-- "Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint in necessary to establish he performance of Talb-i-Muwathibat. Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-i-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit." (Emphasis supplied.) The findings, thus, recorded by the Courts below though concurrent lose their sanctity and being contrary to the law are not worthy of `sustenance, the same are set aside. In view of the above, the revision petition is accepted. As a result whereof, the suit instituted by the respondents/pre emptors shall stand dismissed. The respondents will be entitled to get back any money deposited by them pursuant to the order of the Court. No order as to costs. S.A.K./M-380/L Revision accepted.