2007 SCMR 401 (PLP)
NAWAB DIN through L.Rs. — Appellants Versus FAQIR SAIN — Respondent
| Citation | 2007 SCMR 401 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Sardar Muhammad Raza Khan and Ghulam Rabbani, JJ |
| Parties | NAWAB DIN through L.Rs. — Appellants Versus FAQIR SAIN — Respondent |
| Primary Law | (b) Punjab Pre-emption Act (IX of 1991), (a) Punjab Pre-emption Act (IX of 1991) |
Q1: What are the key laws and sections cited in 2007 SCMR 401 (PLP)?
This judgment primarily cites: (b) Punjab Pre-emption Act (IX of 1991), (a) Punjab Pre-emption Act (IX of 1991) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2007 SCMR 401 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Sardar Muhammad Raza Khan and Ghulam Rabbani, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2007 SCMR 401 (PLP) (NAWAB DIN through L.Rs. — Appellants Versus FAQIR SAIN — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Altaf Elahi Sheikh, Advocate Supreme Court for Appellants.
- Rai Muhammad Nawaz Kharal, Advocate Supreme Court for Respondent.
- Date of hearing: 26th September, 2006.
Headnotes / Summary
(On appeal from the judgment, dated 4-12-2002 passed by the Lahore High Court Lahore in Civil Revision No.898 of 1998).
S. 13
Talb-i-Muwathibat, performance of
Such Talb was a pre-requisite personal act of pre-emptor to activate his right of pre-emption
Defendant could not waive such Talb nor his omission to raise objection in this regard in written statement would extend any benefit to pre-emptor
Proof of such Talb would be necessary even if suit for pre-emption was not contested by defendant or proceedings were ex parte
Principles. Talb-i-Muwathibat is a personal act of prospective pre-emptor, whereby his actual right is activated. It is to be exercised at a time when no suit is yet filed, no notice of Talb-i-Ishhad is served, no Khasomat is preferred and when no defendant is in picture. Thus, the act of Talb-i-Muwathibat being pro-requisite to activate the very right of pre-emption and being subjective and spontaneous of the pre-emptor, has little to be waived by the defendant. The proof thereof is, therefore, necessary even if some suit for pre-emption is not contested by the defendant and even if the proceedings are ex parte. Any omission in this behalf, in the written statement, does not extend any benefit to the plaintiff/pre-emptor. The performance of Talb-i-Muwathibat is restricted to a specific period of time, that is, before dispersal of a Majlis, it remains a matter of limitation by itself and further limits the performance of Talb i-Ishhad within 14 days therefrom. The plaintiff, therefore, has to prove also as to what Majlis it was that he performed Talb-i-Muwathibat in. Talb-i-Ishhad is nothing but creating evidence about the Talb concerned.
S. 13
Talb-i-Muwathibat and Talb-i-Ishhad, performance of
Neither in plaint nor in notice of Talb-i-Ishhad was mentioned as to who informed pre-emptor about sale for first time
Majlis of performance of Talb-i-Muwathibat not mentioned in plaint
Pre-emptor in evidence introduced informer alleging him to have died
No benefit could be drawn from such evidence of pre-emptor
Strong inferences would be that alleged informer, if alive, was not an informer, that he was not present in Majlis; and that no Talb was performed in his presence
Pre-emptor's suit was dismissed in circumstances.
Judgment & Decree
SARDAR MUHAMMAD RAZA KHAN, J.
The legal heirs of Nawab Din, pre-emptor in the original suit, have filed this appeal after leave of Court against the judgment, dated 4-12-2002, whereby, his revision against the judgment dated 13-5-1998 of the First Appellate Court, was dismissed. Nawab Din pre-emptor, granted a decree by the trial Court, was non-suited by the Appellate Court as well as the High Court
holding that the pre-emptor had not performed Talb-i-Muwathibat etc.
2. Learned counsel for the appellant submitted that in the written statement the defendant had only challenged the performance of Talb-i-Ishhad, whereas the Courts have non-suited the pre-emptor for the non-performance of Talb-i-Muwathibat as well. That no issue was framed regarding Talb-i-Muwathibat. So far as the real controversy between the parties is concerned, it can better be reflected from the issues framed. Issue to that effect clearly contains a reference to both the Talbs, of Muwathibat and of Ishhad. There seems to be no surprise sprung upon the pre-emptor.
3. Talb-i-Muwathibat is a personal act of prospective pre-emptor, whereby his actual right is activated. It is to be exercised at a time when no suit is yet filed, no notice of Talb-i-Ishhad is served, no Khasomat is preferred and when no defendant is in picture. Thus, the act of Talb-i-Muwathibat being pre-requisite to activate the very right of pre- emption and being subjective and 'spontaneous of the pre-emptor, has little to be waived by the defendant. The proof thereof is, therefore, necessary even if some suit for pre-emption is not contested by the defendant and even if the proceedings are ex parte. Any omission in this behalf, in the written statement, does not extend any benefit to the plaintiff/pre-emptor.
4. To see the proof or otherwise of' Talbs, we would revert to the record. The sale having taken place on 26-4-1993, the plaintiff in his plaint discloses having received knowledge thereof on 1-8-1993. As the performance of Talb-i-Muwathibat is restricted to a specific period of time, that is, before dispersal of a Majlis, it remains a matter of limitation by itself and further limits the performance of Talb-i-Ishhad within 14 days therefrom. The plaintiff, therefore, has to prove also as to what Majlis it was that he performed Talb-i-Muwathibat in.
5. No such Majlis at all is indicated in the plaint. It is not mentioned in the plaint as to who informed the pre-emptor about sale for the first time. Talb-i-Ishhad is nothing but creating evidence about the Talb concerned. Quite interesting it is to note that even notice of Talb-i-Ishhad Ishhad is totally silent about the existence or otherwise of Muhammad in as informer. This Muhammad Din is for the first time introduced in the evidence but no benefit could be drawn from him because he is alleged to have died. Even if alive, there is evidence and strong inferences on record , that he was not present in the Majlis, that he was not an informer and that no Talb was performed in his presence.
6. The Courts have rightly concurred and non-suited the pre-emptor. There being no force in the appeal, it is hereby dismissed. S.A.K./N-22/SC Appeal dismissed.