2008 PLP 934 (SCMR)

IJAZ-UL-HASSAN KHAN, J.

Through instant petition, petitioners seek leave against judgment, dated 16-4-2007 passed by learned Peshawar High Court, Circuit Bench D.I. Khan dismissing in limine Civil Revision No.159 of 2006 filed by petitioners, upholding concurrent findings of fact recorded by the Courts below.

2. Facts relevant for disposal of this petition are, that by virtue of sale Mutation No.9724, attested on 28-3-1992, Mst. Anwari Begum sold suit-land in favour of respondents Muhammad Sultan and Muhammad Waseem for sale price of Rs.1,00,

000. The petitioners instituted suit on 25-7-1992 in the Court of Senior. Civil Judge, D.I. Khan for possession through pre-emption of suit-land. The suit was resisted on all grounds, legal as well as factual. Relevant issues were framed and after recording evidence of the parties, learned trial Judge, dismissed the suit vide judgment, and decree, dated 23-7-2005 holding that requirements of section 13 of the N.-W.F.P. Pre-emption Act, 1987 were not fulfilled. An appeal was preferred there against before learned District Judge, D.I. Khan, which did not succeed. The same was dismissed by judgment, dated 4-3-2006. The revision petition filed before learned High Court also met the same fate by judgment, dated 16-4-2007, impugned herein.

3. Appearing on behalf of the petitioners, Raja Abdul Ghafoor, learned Advocate-on-Record, contended with vehemence that finding on Issue No.6 are against the record of the case and the law applicable thereto. The Courts below have not properly attended to this aspect of the case, which was instituted way back in July, 1992 where there was no interpretation of section 13 of the N.-W.F.P. Pre-emption Act, 1987 by the superior Courts requiring the pre-emptor to state in the plaint date, time and place of making "Talb-e-Muwathibat".

4. We regret, there is no weight in the submission of learned counsel for the petitioners. It stands established from the material on record that in the plaint the pre-emptor petitioners had not mentioned the date, time and place of performance of "Talb-e-Muwathibat". It is also not disclosed as to when and how, the petitioners got the knowledge of sale transaction in question. It is also not established on record that immediately after getting the knowledge, petitioners had made "Talb-e-Muwathibat" in accordance with the provisions of section 13 of the N.-W.F.P. Pre-emption Act, 1987. In Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302, this Court observed as follows:-- "Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 decided on 27-10-1999 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 decided on 15-11-1999, wherein the consensus was that in view of the law of pleadings, it is not necessary to give the details including the date, place and time of performance to Talb-i-Muwathibat. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail the importance and implication of the word immediate as has been provided in Explanation I to section 13 of the Act 1991 otherwise there was every possibility of arriving at the view which we are intending to take in this case. However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order VI, Rule 5, C.P.C. as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that. a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. 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 is necessary to establish the 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-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit."

5. In the facts and circumstances of the case, we do not find any illegality or irregularity in the impugned judgment as well as in the concurrent findings of fact recorded by the two Courts below warranting interference by this Court. The petition, having been bereft of merit, is dismissed and leave refused. M.H./M-7/SC Petition dismissed.