2017 PLP 99 (CLCN)

SHAHID BILAL HASSAN, J.

Succinctly, the facts leading to filing of the instant regular second appeal are as such that the appellant purchased a shop No.F-426, which was owned by Noor Jahan Begum and others through a sale deed dated 02.09.2003 in lieu of Rs.500,000/-, however, allegedly ostensible sale price was shown as Rs.725,000/-, only to debar the respondent from exercising right of pre-emption. The respondent allegedly gained knowledge about the transaction in question on 22.09.2003 through Fateh Muhammad (P.W.2) in presence of Sheikh Ameer Hashim (P.W.3) and Muhammad Fayyaz, there and then he made jumping demand, whereafter on the same day he sent notice of Talb-e-Ishhad (P-1) to the appellant, but on refusal, he instituted suit for possession on the basis of pre-emption being Shafi Shareek. The suit was contested by the appellant through filing written statement. Out of the divergent pleadings of the parties, as many as 09 issues including "Relief" were framed by the learned trial Court. Both the parties were invited to lead their evidence, which was adduced in pro and contra. The learned trial Court vide impugned judgment and decree dated 08.10.2007 decreed the suit in favour of the respondent and against the present appellant. The appellant being aggrieved of the said judgment and decree preferred an appeal, but the same was dismissed vide impugned judgment and decree dated 11.11.2008.

2. Opening brief the learned counsel for the appellant has submitted that the impugned judgments and decrees are against law and facts of the case; the same suffer from gross misreading and non-reading of the material available on the record. Contends that the learned Courts below have acted mechanically while decreeing the suit of the respondent regarding a commercial property, which is not sustainable in the eye of law as the learned Courts below have failed to apply section 3 of the Punjab Pre-emption Act, 1991 in its true spirit, because the commercial property is not open to pre-emption as per the spirit of Islamic Law, hence, the transaction was not pre-emptible. Adds that the right of pre-emption cannot be enforced in case of commercial properties because a question of privacy of property or disagreeable neighbor as envisaged by Islam, does not arise in such case; as such the findings of the learned Courts below on issues Nos.1 and 3 are erroneous. States that the findings on issues No.7 are also not maintainable as the appellant has proved his stance through confidence inspiring evidence. Maintains that the learned Courts below have failed to exercise vested jurisdiction in accordance with law and by travelling beyond the same, non-suited the appellant mere on the basis of surmises and conjectures. Submits that even if the right of pre-emption is admitted for the sake of arguments, the respondent has failed to perform and prove the requisite talbs as per mandate of section 13(3) of the Punjab Pre-emption Act, 1991. Therefore, by allowing the appeal in hand, impugned judgments and decrees may be set aside and suit instituted by the respondent may be dismissed with costs throughout. Relies on Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762) and Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866).

3. Contrarily, the learned counsel appearing on behalf of the respondent by favouring the impugned judgments and decrees has prayed for dismissal of the appeal in hand. Adds that in the grounds of appeal it was not alleged that notice was not received, therefore, this plea cannot be agitated before this forum. Relies on Muhammad Farooq v. Abdul Waheed Siddiqui and others (2014 SCMR 630), Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21), Dost Muhammad (Deceased) through L.Rs. v. Muhammad Yousaf and others (2008 SCMR 1339) and Abdul Rehman and others v. Mahar Bakhsh and others (2005 SCMR 1364).

4. Heard.

5. First of all this court has to dilate upon the question whether commercial property is pre-emptible or not, as section 5 of the Punjab Pre-emption Act, 1913 exempts a shop, Sarai or Katra from the right of pre-emption, whereas section 3 of the Punjab Pre-emption Act, 1991 provides that In the interpretation and the application of provisions of this Act, the Court shall seek guidance from the Holy Qur'an and Sunnah, meaning thereby the interpretation made in this regard in a reported judgment Haji Muhammad Ameen and others v. Islamic Republic of Pakistan and others (PLD 1981 FSC 23) is applicable to the present case, as when a question with regard to repugnancy of section 5 of the Punjab Pre-emption Act, 1913 came before the Hon'ble Federal Shariat Court, it was held: 'Now section 5 of the Punjab Pre-emption Act exempts commercial properties like shop, Sarai or Katra from the operation of the Act. There is no specific tradition of the Prophet (p.b.u.h.) conferring right of pre-emption on such properties. The specific right of pre-emption has been held to accrue on sale of house, garden or land only. For this reason the provision is not repugnant to the Sunnah of the prophet. Even otherwise no Zarar is caused by the sale of such properties to strangers.' When the above ratio is read with section 3 of the Punjab Pre-emption Act, 1991 (prevalent Act), it can safely be observed and held that the commercial properties are not pre-emptible; even otherwise, the right of Pre-emption is only to safeguard the privacy of Muslim families and the same cannot be enforced in case of commercial properties because the question of disagreeable neighbor in such cases does not arise. In this regard reliance can safely be placed on Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 Supreme Court 360) and Messrs M.R. Sons v. M/s. Junaid Associates (Private) Ltd. (PLD 1990 Karachi 387). Moreover, the law of pre-emption is not a way of accumulating wealth, because our religion (Islam) stresses upon distribution of properties and does not support monopoly of certain person(s).

6. Apart from the above, if for the sake of arguments, it is admitted that the property in question is pre-emptible, even then the respondent had to prove performance of requisite talbs in accordance with law, as in order to succeed in such a suit, performance of talbs and proving of the same in accordance with the mandate of law by producing unimpeachable and confidence inspiring evidence is necessary and any lacuna, even the slightest, turns fatal to the pre-emptor. In the present case, when the evidence produced by the parties is looked into, it appears that when the appellant/defendant has specifically denied the receipt of any notice of Talb-i-Ishhad, it was imperative upon the respondent/plaintiff to prove the dispatch and delivery of notice to the appellant/ defendant; but he has badly failed in this regard as none of the attesting witnesses has uttered a word as to sending notice under section 13 of the Act under registered cover A.D. as well as receiving of the same by the present appellant, even they failed to attest their signatures on the alleged notice. Moreover, the scribe of the notice was also not produced and even no detail of sale was given by P.W.1. In addition to the above, not a single suggestion had been put to the appellant that he had received notice A.D. and the copy of postal receipt A.D. had been exhibited in counsel's statement, therefore, it emerges that dispatch of notice is neither alleged nor proved; thus, this talb has not been proved, whereas performance and proving of the same is sine qua non. In this regard light can be sought from cases of Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), Muhammad Jamil Lambardar v. Ghulam Bheek (deceased) through his legal heirs (2014 UC 201) and Dayam Khan and others v. Muslim Khan (2015 SCMR 222).

7. Pursuant to the above discussion, even if it is admitted that the respondent performed and proved Talb-e-Muwathibat, non-proving of second talb i.e. Talb-e-Ishhad is sufficient to disbelieve the version of the respondent, as performance and proving of all talbs is essential in order to succeed in such suit. When the respondent/plaintiff has failed to prove performance of Talbs, as per requirement of law enunciated under section 13 of the Punjab Pre-emption Act, 1991, no decree for possession on the basis of pre-emption, even if the pre-emptor enjoys superior right, can be passed in his favour. Reliance is placed on Mst. Sahib Jamala v. Fazal Subhan and 11 others (PLD 2005 Supreme Court 977).

8. As far as, the case law relied upon by the learned counsel for the respondent is concerned, with utmost respect, the same does not apply to the present case, as the peculiar facts and circumstances of the case in hand are different from that which are narrated in the said precedents; therefore, it does not render any assistance or help to the respondent's case.

9. For the foregoing reasons, while placing reliance on the judgments supra, it is observed that the learned Courts below have failed to appreciate evidence and law on the subject in its true perspective and have failed to exercise jurisdiction vested in them in accordance with law; as such, material illegalities and irregularities have been committed while passing the impugned judgments and decrees. Resultantly, by allowing the appeal in hand, the impugned judgments and decrees passed by the learned Courts below, being not sustainable in the eye of law are set aside; consequent whereof the suit instituted by the respondent/plaintiff stands dismissed. No order as to the costs. MQ/A-40/L Appeal allowed.