2001 PLP 1922 (CLC)

District)

1. District and Sessions Judge District and Sessions Judge/Zila Qazi.

2. Additional District and Additional District and Sessions Judge Sessions Judge/Izafi Zila Qazi.

3. Senior Civil Judge Senior Civil Judge/Aala Illaqa Qazi (Civil).

4. Civil Judge Civil Judge/Ilaqa Qazi (Civil)

5. Magistrate Magistrate/Illaqa Qazi (Criminal)

4. A bare look of the Schedule shows that civil matters are to be dealt with by the Presiding Officers designated as Civil Judge/Illaqa Qazi while the criminal matters were to be decided by the Judicial Officer designated as C Magistrate/Illaqa Qazi. The instant matter being purely of civil nature was within the competency of the Civil Judge/Illaqa Qazi and not of the learned E.A.C. who rendered the impugned judgment. His next contention was that the suit of the plaintiff was dismissed purely on the question of Talbat but in the instant matter no issue was framed on this crucial point nor the petitioner was afforded any opportunity to produce his evidence in order to establish the factum of making the required Talbs in accordance with law. The learned counsel took me to the written statement wherein the respondents had not taken any objection regarding the making of Talbs and it was on 21‑2‑1995 that an application was filed for the dismissal of the suit which was fixed for arguments on 27‑3‑1995. This application was based on the ground that no requisite Talb was made. The petitioner, however, submitted reply to this application wherein he, inter alia, categorically mentioned that the petitioner had complied with all the formalities and before filing the suit the Talbs were made in accordance with law and evidence to that effect will be produced in the Court. The learned counsel reiterating the contents of his revision petition urged that he was in possession of the evidence in the form of the recorded cassettes regarding the Talbs which he could produce before the Court if the petitioner was not denied his right of recording the evidence on the point and by such denial the petitioner has been condemned unheard.

5. On the other hand, the learned counsel appearing on behalf of the respondents has defended the impugned orders on the grounds mentioned therein and addedly submitted that in view of subsection (3) of section 35 of the N.‑W:F.P. Pre‑emption Act, 1987 (Act X of 1987) the suit of the petitioner abated as no Talb was made by the petitioner. In support of his contention the learned counsel relied on the judgment of the august Supreme Court of Pakistan in case of Rozi Khan v. Karim Shah reported as 1992 SCMR 445.

6. I have heard the rival arguments of both the learned counsel and have anxiously gone through the record and the law on the subject with the assistance of the learned counsel for the parties. Admittedly, the instant suit was filed in 1992 (28‑7‑1992) and by that time the N.‑W.F.P. Pre‑emption Act, 1987 (Act X of 1987) had not been extended to PATA. This Act was extended to the said area on 25‑9‑1994 i.e. much after the institution of the instant suit. The suit was instituted under PATA Civil Procedure (Special Provisions) Regulation No.II of 1975 and this law in itself is a procedural law governing the trial and procedure of civil cases. Subsection (4) of section 3 of the said Regulation specifically ousted the application of the Evidence Act, 1872 (I of 1872) and the Code of Civil Procedure, 1908 (Act V of 1908), which in its own diction is reproduced below:‑‑ "(4) Except as otherwise provided in this Regulation, the provisions of the Evidence Act, 1872 (I of 1872), and the Code of Civil Procedure, 1908 (Act V of 1908), shall not apply to any proceedings under this Regulation." Thus, making it clear that the plaints drafted and suits filed under the said Regulation had no applicability of the two laws mentioned therein. Thus, the question whether a plaint has been drafted in accordance with the relevant provisions of Code of Civil Procedure or not is of no importance for the cases instituted under PATA Regulation. By making reference to subsection (4) of section 3 (ibid) what I mean to clarify is that if the petitioner had not mentioned the factum of making the requisite talbs being the sine qua non for the enforcement of the pre‑emptive right, such omission would not have the effect of invalidating the suit of the plaintiff, moreso, when no such objection was raised in the written statement from the side of the defendants.

7. After the annulment of the PATA Regulation and up to the extension of N.W.F.P. Pre‑emption Act i.e. 25‑9‑1994 the concerned area was under a vacuum on the point of pre‑emption law and during the said interregnum the area was governed by General Islamic Law. According to the Islamic Law the enforcement of the right of pre‑emption is invariably qualified with the making of the three Talbs i.e. "Talb‑i‑Muwathibat", "Talb‑ i‑Ishhad" and "Talb‑i‑Khusumat" which requirement has been incorporated in section 13 of the N.‑W.F.P. Pre‑emption Act, 1987.

8. It is also a feature of the case that, no doubt, the making of Talbs under the General Islamic Law is a sine qua non for the enforcement of right of pre‑emption but not necessarily in the manner provided by section 13 of the N.‑W.F.P. Pre‑emption Act, 1987, and thus, the right of pre‑emption could validly be enforced if the plaintiff could show that the requisite Talbs were made in the spirit demanded by the Islamic Law.

9. The matter of the three different demands in context of the Islamic Jurisprudence has been dealt with in the judgment of the august Supreme Court in case of Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC

360. The discussion on the point of Talbs at page 398 of the judgment as citation "H" is instructively reproduced as below:‑‑ Further, at page 401 the following observations regarding "Talb Taqreer" are relevantly quoted:‑‑ While "Talb‑i‑Khusumat is' the filing of the suit in the competent Court.

10. In the instant case the petitioner has assertively mentioned in his replication to the application of the respondents for dismissal of the suit that the petitioner has made all the required Talbs. It is an established principle of Qanun‑e‑Shahadat that a person who asserts/alleges a particular fact and wants the Court to believe that such fact exists, he shall be required to prove the existence of such a fact. Obviously the existence of a fact, in the instant case the making of Talbs, can be established only after affording an opportunity to produce the evidence on the point in issue. The learned trial Court without affording proper opportunity dismissed the suit of the petitioner on mere assertion by the respondents that the plaintiff‑petitioner has not made any Talb while the assertive claim by the petitioner in his reply was totally overlooked. Even otherwise, the dismissal of a suit is a penal action against the plaintiff whereas the continuance of proceedings in the suit are not so in the strict sense as the continuance of proceedings in the suit would lead to a conclusion more solid and sound in nature being the outcome of the appreciation and evaluation of the evidence of the parties. In such a situation the case of the plaintiff should not have been embryonically nipped.

11. On the point of abatement of the suit, as argued by the learned counsel for the respondents, I may observe that the dismissal of the suit is not the result of abatement but had occasioned on the point of Talbs. In this regard the very judgment of Rozi Khan v. Karim Shah referred by the learned counsel for the respondents in citation "D" provides that only such suit which were pending before the commencement of the Act, 1987 will not abate where the right of pre‑emption is claimed by such pre‑emptor in whom the right of pre‑emption vests under section 6 of the Act and they have made demand of pre‑emption (Talbs) as required under the provisions of section 13 thereof. Section 6 of the N.‑W.F.P. Pre‑emption Act is reproduced as below:‑‑ "

6. Person in whom the Right of Pre‑emption vests.‑‑‑ The right of pre -emption shall vest; (a) firstly in Shafi‑Sharik; (b) Secondly in Shafi‑Khalit; and (c) Thirdly in Shafi‑Jar. (I) Shafi Sharik' means a person who is a co‑owner in the corpus of the undivided immovable property sold with other person or persons. (II) Shafi‑Khalit' means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. (III) Shafi‑Jar' means a person who has a right of Pre‑emption because of owning an immovable property adjacent to the immovable property sold."

12. A plain reading of the above section shows that it determines the categories in order of preference of pre‑emptors and the grounds recognised for pre‑emption. The three categories are "Shafi Sharik", "Shah Khalit" and "Shaft‑Jar" as recognized by the Islamic Jurisprudence. In the instant case the claim of pre‑emption of the petitioner also rests upon the said grounds as mentioned in paragraph No.3 sub‑para. (Alit), (Bay) and (Deem) of the plaint. So far as the application of section 13 of the Pre‑emption Act is concerned that was obviously not applicable to the instant case. Therefore, in my view the case of the petitioner cannot be visited with the peril of abatement.

13. In view of the above discussion, I am clear in my mind that the impugned order of the E.A.C. was not only quorum non judice but the dismissal of the suit on the points of Talbs was also unwarranted in law by not providing an opportunity to the petitioner for establishing his stance/claim regarding his consistent claim of making Talbs. Consequently, I accept this revision petition, set aside the impugned orders of both the Courts below and sent the case back to the Court of Illaqa Qazi (Judicial) for its de novo trial by giving full opportunities to both the parties to adduce their evidence in support of their claim and then to decide the case in accordance with the law governing the controversy in issue. No order as to costs. H.B.T./232/P Case remanded.