2011 CLC304 (PLP)

IJAZ AHMAD, J.

The respondent/plaintiff instituted a suit for possession on the basis of his right of pre-emption against the respondent/defendant in respect of the suit: land mentioned in the plaint. The respondent claimed his preferential right on account of being "Shafi Sharik" and "Shafi jar" in the suit, property. The suit was contested by the petitioner/defendant. The issues: whether the transaction in fact was a sale? whether the plaintiff had a superior right to purchase the property? And whether the "Talbs" were made in accordance with law were decided in favour respondent/plaintiff. The appeal preferred by the petitioner was dismissed by the learned Additional District Judge, Attock vide decree dated 13-11-2001. The findings of the learned trial Court on all the above issues were maintained.

2. The learned counsel for the petitioner contends that he would like to flex mental faculties on the issue of making of "Talbs" without prejudice to his right of advancing arguments on the other issues if so required. He contends that respondent has not made "Talbs" in accordance with section 13 of the Punjab Pre-emption Act, 1991. The bare reading of the plaint shows that the date, time and place of making "Talab-e-Muwathibat" has not been mentioned. It is averred in paragraph No. 2 as follows:-- He augments his arguments by referring to the statements made by the plaintiff as P.W.1, Rabnawaz P.W.2 and Walayat Khan P.W.3. None of the said witnesses has made any reference regarding the place, date and time regarding the date of "Talb-e-Muwathibat". The learned counsel for the petitioner placed reliance on the judgment cited as PLD 2003 Supreme Court 315, titled Haji Muhammad Saleem v. Khuda Bakhsh to argue that "Talb-e-Muwathibat" is not to be taken lightly and should not be considered a mere technicality, Talb-e-Muwathibat has to be made with reference to time, date and place of making it in order to be able to initiate the civil proceedings in a suit for pre-emption. Reliance is also placed on 2005 SCMR 431 titled Akbar Ali Khan and others v. Mukamil Shah and others, PLD 2007 Supreme Court 302 titled Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others, wherein the import of mentioning the name of the witnesses, the place, time and the date of making "Talbs' has been discussed and determined. Same is the ratio of the judgments cited as PLD 2008 Supreme Court 559 titled Mst. Bashiran Begum v. Nazar Hussain and another, 2009 SCMR 630 titled Haqnawaz v. Muhammad Kabir, 2009 SCMR 673 titled Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed; and 2009 SCMR 678 titled Muhammad Suleman v. Shaukat Ali.

3. On the other hand, learned counsel appearing on behalf of the respondent/plaintiff contends that an omission' to mention the place, date and time of making of "Talb-e-Muwaithibat" does not non suit a pre-emptor. Reliance is placed 2000 SCMR 314 titled Altaf Hussain v. Abdul Majeed and 2000 SCMR 329 titled Haji 'Noor Muhammad v. Abdul Ghani and two others. It is argued that the decree by the trial court was passed on 20-3-1999 and by learned Additional District Judge on 13-11-2001. At the time of passing of the decrees, both the courts below had rightly followed the law that held the field as it was laid down in the two last referred judgments. The courts had not acted illegally and had not exercised the jurisdiction vested in them in an irregular manner and had passed the impugned decrees in accordance with law as it was interpreted the superior courts. After passing of the decree by the appellate court, the lis was a past and closed chapter. A judgment passed by the superior courts after the decree having been passed by the appellate court could not be followed by this court while deciding the matter in exercise of its revision and jurisdiction. It is further argued that the plaint was in conformity with the provision of Order VI, Rule 2, C.P.C., which provides that the pleadings shall state the material facts only and not the evidence.

4. I have heard the learned counsel for the parties and have also gone through the record.

5. The plaint is silent about the place, date and time of the making of "Talb-e-Muwathib". It only mentions that the plaintiff proclaimed that he would exercise his right of pre-emption as soon as he had the knowledge of the transaction. The statements made by the plaintiff as P.W. and of the witnesses are also completely silent about the three said factors considered by the superior courts as being of Himalayan importance for making "Talb-e-Muwathibat". The cases referred by the learned counsel for the respondent as 2000 SCMR 301 and 2000 SCMR 329 have been taken care of in the latter judgment passed by the august Supreme Court of Pakistan making if obligatory on the plaintiff to make a reference of the place date and time of making "Talb-e-Muwathibat". The law laid down in 2000 SCMR 314 has specifically been dealt with and dissented in the judgment made by the august Supreme Court of Pakistan in PLD 2007 Supreme Court

302. I do not hesitate in holding that the judgment referred by the learned counsel for the petitioner being latter in time hold the field and the judgments referred by the learned counsel for the respondent stand over ruled and cannot be followed anymore. The stance of the learned counsel for the respondent that the plaint was in conformity with the provision of Order VI of C.P.C. 1908 is devoid of force. A party cannot lead evidence beyond its pleadings. The reference of the place, date and time of making the Talb-e-Muwathibat in the plaint is a sine qua non in a suit for pre-emption. These are the material facts on which the plaintiff relies and cannot be termed as evidence. As the "Talb-e-Muwathibat" has to be made in the same meeting that is, after the receipt of information about the sale and before the dispersal of the meeting, therefore, the mention of the above three factors becomes essential in order to compute the period of limitation fixed for making of "Talb-e-Ishhad" that has to be made within the period of 15 days after "Talb-e-Muwathibat".

6. Another point that has to be dealt with in his case is, whether the revision is the continuation of the lis or not and whether the legality of the impugned judgments should be gauged in the instant revision petition in the light of the judgments pronounced by the superior Judiciary after the passing of the impugned judgments. As defined in the blacks law dictionary lis is a piece of litigation; a controversy or dispute. In PLD 2008 Supreme Court 559 titled Mst. Bashiran Begum v. Nazar Hussain and another it has been held that the requirement of mentioning the place, date and time in the plaint is essential even in the pending cases. Thus the dictum laid down in Mian Pir Muhammad's case cited as PLD 2007 Supreme Court, 302 is applicable in the instant case. The distinction between the remedy by way of appeal or the revision is of little significance for determining whether the revision is continuation of the lis and whether Mian Pir Muhammad's case is attracted in the instant case or not. The appeal is the continuation of the original proceedings I before the higher forum for testing the soundness of the decision of the lower court. On the other hand the remedy of revision is discretionary and the revisional court has to proceed under certain limitations. In both the cases, the decree of the lower court is under assault. This is so held in the case 1992 SCMR 241 titled Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others. The Judicial Committee in the case (59 IA 283) titled Nagendra Nath Dey and others v. Suresh Chandra Dey and others regarded an application for revision as an appeal. The precise observation of their lordships was that, there is no definition of appeal in the Code of Civil Procedure but their lordships had no doubt that any application by a party to an Appellate Court, asking it to set aside or revise the decision of a subordinate Court, is an appeal within the ordinary acceptance of the terms. A similar view has been formed in the case cited as PLD 1961 Dacca, 312 titled Mymensingh Co-operative Town Bank Ltd. v. Rajendra Chandra Roay. In view of the law laid down in the cases referred by the learned counsel for the petitioner and the judgment dated 7-10-2010 pronounced in Civil Revision No. 394-D of 2002 of Lahore High Court, Rawalpindi Bench, Rawalpindi titled Irshad Begum v. Muhammad Rafique, this petition stands accepted. The judgments passed and the decrees drawn by both the courts below are set 1 aside. The suit of the respondent is dismissed. M.U.Y./M-626/L Revision accepted.