2012 PLP 2189 (YLR)

C.M. No.885-C of 2010 The reasons stated in the C.M.A duly supported by the affidavit of the learned counsel, are sufficient for the restoration of the main case. C.M.A is allowed. This petition is restored to its original number. Disposed of. MAIN CASE. MUHAMMAD AMEER BHATTI, J.

The suit for possession through pre-emption was filed by the respondent against the sale of land measuring 16-K, situated in the revenue estate of Mouza Thatha Goraya Tehsil Daska in the court of learned Civil Judge, Daska, whereby the learned trial court dismissed the suit against which appeal filed by the respondent was accepted by the learned First Appellate Court vide judgment dated 16-4-2002 and in consequence, the suit of the respondent was decreed.

2. The brief facts of the case are that the suit for possession through pre-emption filed by the respondent was contested by the petitioner through preliminary objections besides factual position. The petitioner specifically raised the objections about the non-fulfilment of Talbs in accordance with law. From the divergent pleadings of the parties, the issues were framed and parties were allowed to lead evidence according to their onus on issues. The learned trial Court vide judgment dated 26-1-1999 dismissed the suit after considering the evidence of the parties but the appeal filed by the respondent/plaintiff was accepted and consequently the suit of the respondent/plaintiff was decreed. This revision petition is pending in this Court since 2002 after its admission for regular hearing. The Hon'ble Supreme Court of Pakistan after visiting all the available judgments on the point of time, place and date of Talb-e-Muwathibat whether necessary to be mentioned in the plaint at the time of filing of the suit, declared in a case reported as (2000 SCMR 329) Haji Noor Muhammad v. Abdul Ghani and 2 others that the said particulars are not necessary to be mentioned in the plaint and this view was followed and then the Hon'ble Supreme Court of Pakistan re-visited all the available judgments on the point that the time, place and date of Talb-e-Muwathibat and date of issuing the notice of Talb-e-Ishhad are necessary to be mentioned in the plaint at the time of filing of the suit. The larger Bench of the Hon'ble Supreme Court of Pakistan answered in affirmative and declared that in a plaint the particulars of date, time and place of Talb-e-Muwathibat is mandatory requirement of law under section 13 of the Punjab Pre-emption Act (IX of 1991) reported as (PLD 2007 SC 302) (Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. and others):-- "Performance of both Talbs successfully is sine qua non for getting a decree in pre-emption suit

Supreme Court approved the view that a plaint wherein date, place and time of Talb-e-Muwathibat and date of issuing notice of performance of Talb-e-Ishhad in terms of S.13 of Punjab Pre-emption Act, 1991, was not provided, it would be fatal for the pre-emption suit." It has been particularly held that non-mentioning of any of the three particulars of Talb-e-Muwathibat in the plaint would result in dismissal of pre-emption suit and uptill now this dictum laid down by the Hon'ble Supreme Court of Pakistan is being followed in letter and spirit by the Courts of this country.

3. In the light of the law laid down by the Hon'ble Supreme Court of Pakistan referred ibid the plaint has been read with the assistance of the learned counsel for the parties wherein the time and place has been found missing. When confronted with this situation, the learned counsel for the respondent tried to wriggle out of it by contending that only date is necessary to calculate the question of limitation for making Talb-e-Ishhad and Talb-e-Khasoomat and time and place is not necessary or helpful for the calculation of limitation, therefore, non-mentioning of these two particulars are not fatal to the suit of the respondent. Further contends that in the Pre-emption Act, nothing is mentioned about the mentioning of requisite particulars in the plaint. Further contends that the judgment of the Hon'ble Supreme Court of Pakistan in Mian Pir's case will apply on the cases which have been filed after the pronouncement of the judgment of Hon'ble Supreme Court of Pakistan ibid, therefore, the dictum laid down by the Hon'ble Supreme Court of Pakistan in Haji Noor Muhammad's case was in field at the time the suit was decreed and due to change of the view of Hon'ble Supreme Court of Pakistan in 2007 ibid will not affect the rights of the petitioner. Further contends that all the requisite particulars have been specially explained in the testimony of the witnesses of the respondent/plaintiff, therefore, the benefit shall have to be granted to the respondent/ plaintiff whose suits are pending before the dictum laid down by the Hon'ble Supreme Court of Pakistan in 2007 Mian Pir's case.

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

5. The arguments of the learned counsel for the respondent are neither convincing nor acceptable in the light of the dictum laid down by the Hon'ble Supreme Court of Pakistan Mian Pir's case ibid, which is binding in nature in terms of Article 189 of Constitution of Islamic Republic of Pakistan 1973. As such, the pre-emptor failed to fulfil the requisite conditions of making Talb-e-Muwathibat and his mere, assertion as to performance of Talbs and making of some improvements in evidence was of no legal consequence. Therefore, the pre-emptor failed to lay proper foundation in pleadings about performance of Talbs and his alleged superior right of pre-emption stood extinguished due to non-performance of Talbs in accordance with the dictum laid down by the Hon'ble Supreme Court of Pakistan.

6. As a result of the foregoing position, omission to specify details of time and place of Talb-e-Muwathibat and date of issuing the notice of Talb-e-Ishhad in the plaint constitute an infraction of mandatory terms of statute, rendering the suit non-maintainable. Consequently, this petition is allowed with the result that the suit filed by the respondent stands dismissed. No order as to costs. K.M.Z./N-19/L Petition allowed.