2010 PLP 1796 (SCMR)

CH. EJAZ YOUSAF, J.

This petition for leave to appeal is directed against the order/judgment dated 13-5-2004 passed by a learned Single Bench of the Peshawar High Court, Peshawar, whereby Civil Revision bearing No. 233 of 2003 filed by the respondent was allowed, the judgment and decree passed by learned District Judge, Swabi, was set aside and that of Civil Judge, Swabi was restored.

2. Facts of the case, in brief, are that a suit for possession by way of pre-emption of the land detailed in the plaint, was instituted by the petitioner against the respondent which was contested by the respondents by filing written statement. The learned trial Court, after framing issues and recording evidence of both the parties, decreed the suit in favour of the petitioners vide judgment and decree dated 27-5-1992. However, in appeal learned District Judge Swabi set aside the order of the Civil Judge and the case was remanded to the trial Court for decision afresh. On remand, the trial Court dismissed the suit of the petitioner vide judgment and decree dated 14-4-1997. The petitioner/plaintiff filed appeal before the District Judge Swabi which was allowed and the case was again remanded to the trial Court for decision afresh. Being aggrieved, the respondents/defendants filed C.R. No.115 of 1998 in the High Court which was allowed vide judgment dated 15-1-2001 and the case was again remanded. On remand, the learned District Judge accepted the appeal and decreed the suit in favour of the petitioner/plaintiff, vide judgment and decree dated 30-1-2003. Being dissatisfied the respondents/defendants filed civil revision before the Peshawar High Court, Peshawar, which; as stated in the opening para hereof, was allowed vide the impugned judgment, hence this petition.

3. It would be pertinent to mention here that the revision filed by the petitioner was dismissed primarily for the reason that neither the date, time or place, when Talb-i-Muwathibat was made, was mentioned in the plaint, nor the plaintiff had disclosed the name of the person from whom he gained knowledge regarding the alleged sale. Reliance was placed on the cases reported as (i) Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), (ii) Shaibar v. Babu (2003 CLC 1439) and (iii) Mst. Shamim Akhtar v. Kh. Maqsood Ahmad 1998 SCMR 2227. The learned Judge was further of the opinion that since appellate court had failed to appreciate the correct legal position and thus had committed material irregularity, therefore, the impugned judgment was not sustainable.

4. It is by now well settled that non-mentioning the place, date and time of Talb-i-Muwathibat and date of issuing the notice of Talb-i-Ishhad, in terms of section 13 of the Pre-emption Act, is fatal towards maintainability of a suit for pre-emption. At would be pertinent to mention here that the proposition in hand came up for consideration before a larger Bench of this Court in the case of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) and was answered in the following words:- "

4. It is observed that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat, in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talb-i-Ishhad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of section 13 of the Act." and the above view has been reiterated in a recent judgment delivered by this Court in the case reported as Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404), wherein it has been unequivocally laid down that it was mandatory for the pre-emptor to mention the date, time, place, as well as name -of the person in whose presence the information regarding sale of the suit-land was received. Similar view has also been taken in the case of Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), wherein, it was held that the requirement of mentioning the date, place and time in the plaint is also essential even in the pending cases. This Court in an unreported judgment dated 18-11-2008, titled as Haq Nawaz v. Muhammad Kabir (C.A. No. 1259 of 2008) has also upheld the order of dismissal of the suit, wherein the petitioner/plaintiff had though mentioned the date and place in the plaint but omitted to state the time of making the Talb-i-Muwathibat.

6. Upshot of the above discussion is that we see no merit in this petition, which being misconceived, is hereby dismissed and leave is refused. M.H./J-8/SC Petition dismissed.