2020 PLP 2016 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the legality of judgment and decree dated 06.01.2018 passed by the learned Additional District Judge, Arifwala whereby appeal of respondent No.1 was accepted after setting aside order and decree dated 06.04.2016 remanded the case to the learned trial court for afresh decision after recording the evidence of both the parties.

2. Brief facts of the case are that respondent No.1 filed suit for pre-emption against the petitioners in respect of land measuring 1-Kanal situated at Pakpattan Road, Arifwala. The petitioners/defendants filed application under Order VII, Rule 11, C.P.C. for rejection of plaint which application after contest was accepted by the learned trial court and plaint was rejected vide order and decree dated 06.04.2016. Respondent No.1 filed appeal which was accepted by the learned appellate court while setting aside order and decree of the learned trial court remanded the matter for fresh decision after recording the evidence of both the parties vide judgment and decree dated 06.01.2018. Hence, this civil revision.

3. I have heard the arguments of the learned counsels for both the parties and gone through the record with their able assistance.

4. Admittedly Muhammad Bashir, predecessor-in-interest of the petitioners entered into an agreement to sell dated 18.07.1966 with Mahar Din and Muhammad Latif. Whereafter the above vendees alienated the suit land to Muhammad Shafi Zewar (father of respondent No.1) through gift mutation Nos.1 and 157 dated 24.11.1967 and 05.07.1969 respectively. Bashir Ahmad, father of the petitioners filed suit for specific performance against Mahar Din and Abdul Latif (donors) and father of respondent No.1 namely Muhammad Shafi Zewar, donee. During pendency of the suit, father of respondent No.1 (Muhammad Shafi Zewar, donee) died and respondent No.1 was impleaded as party being legal heirs in the said suit. Respondent No.1 contested the suit which was decreed by the learned Civil Judge vide judgment dated 20.07.2000. Respondent No.1 preferred an appeal which was dismissed by the learned Additional District Judge vide judgment and decree dated 26.01.2002. Respondents' Regular Second Appeal (RSA No.29/2004) stood dismissed on 09.01.2012 and their appeal before the Hon'ble Supreme Court also met with dismissal. In execution of the decree, respondent No.1 and others filed objections which were also dismissed. Respondent No.1 challenged the said order in Civil Revision No.686 of 2014 which was dismissed by this Court vide order dated 03.03.2014. Against the said order, respondent No.1 filed Civil Petition No.550 of 2014 which was withdrawn from the Hon'ble Supreme Court of Pakistan vide order dated 02.09.2014 and matter in issue attained finality. After having lost the case upto the Hon'ble Supreme Court of Pakistan, the respondent (donee) filed a suit for pre-emption against the petitioner. It is appropriate to understand that who is competent person to file suit for pre-emption. As per provisions of Section 6 of the Pre-emption Act, 1991, only Shafi Sharik, Shafi Khaleet and Shafi Jar are considered to have a cause of action to bring a suit under the pre-emption Act. The aforesaid provision also prescribes the qualification/competence of a pre-emptor. For ready reference, Section 6 is reproduced as under:- "

6. Persons in whom the right of pre-emption vests. (1) The right of pre-emption shall vest

(a) firstly, in Shafi Sharik; (b) secondly, in Shafi-Khaleet; and (c) thirdly, in Shafi Jar. Explanation.

(1) "Shafi Sharik" means a person who is a co-owner in the corpus of the undivided immovable property sold. (II) "Shafi-Khaleet" 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. (2) Notwithstanding anything in subsection (1), the right of pre-emption shall be exercisable only in case of 'Zaroorat' or to avoid 'Zarar'." Admittedly after passing of final decree against respondent No.1 and others which remained upheld upto the Hon'ble Supreme Court of Pakistan and in execution of the decree the sale deed was registered in favour of the petitioners. The respondent's right over the suit land stand extinguished as he has not furnished any meticulous detail which may bring his case within the ambit of section 6 of the Pre-emption Act, whereas a concocted / false story is articulated regarding the meeting and departing of information of the sale. Reliance is placed on the case titled as Hamid Qayyum and 2 others v. Abdul Majeed and 9 others (2000 CLC 1077). Besides the above from perusal of Para-3 of the plaint, the respondent / plaintiff / pre-emptor stated as under:- The respondent / plaintiff has not disclosed the source of information, of registration of sale which necessarily be pleaded in the plaint, but the same was not done by the pre-emptor which is fatal. Reliance is placed on the case reported as Subhanuddin and others v. Pir Ghulam (PLD 2015 SC 69) and in the case titled as Muhammad Anwar v. Safeer Ahmed and 5 others (2017 SCMR 404) wherein the Hon'ble Supreme Court of Pakistan held as under:- "

6. It is now settled law that Talb-i-Muwathibat is a sine qua non for maintaining a Suit for Possession through Pre-emption. It is equally settled law that in the plaint, the time, date and place of Talb-i-Muwathibat must necessarily be pleaded along with the source of information of the sale pre-empted " The above view has been reiterated in case titled as Mir Muhammad Khan and 2 others v. Haider and others (PLD 2020 SC 233). Further it is mandatory that pre-emptor should have clearly mentioned the names of the witnesses of Talab-i-Muwathibat as well as Talab-i-Ishhad in the plaint but the said mandatory required informations are conspicuously missing. For ready reference para 4 of the plaint is reproduced as under:- The aforementioned inherent material legal flaws are considered fatal for the pre-emptory suit and the Hon'ble Supreme Court of Pakistan in its order dated 10.06.2016 passed in Civil Petition No.27-L of 2016 titled as Kashif Mahmood (decd) through L.Rs v. Rasheed Ahmad held as under:- "The brief facts of the case are that the suit for pre-emption filed by the respondent against the appellants had been dismissed by the learned Trial Court, primarily on the issue of Talbs. However, on appeal of the respondent, the suit had been decreed and the appellants remained unsuccessful before the learned High Court. The only point raised before this Court is that the names of the witnesses of notice of Talb-i-Ishhad had not been mentioned in the plaint, therefore the suit could not be decreed in favour of the respondent in light of the law laid down by this Court in the case reported as Dr. Pir Muhammad Khan v. Khuda Bakhsh and others (2015 SCMR 1243).

2. We have heard the learned counsel for the appellants and perused the contents of paragraph No.2 of the plaint. In the said paragraph though the names of the witnesses qua Talb-i-Muwathibat are clearly stated, but this is conspicuously missing as regards Talb-i-Ishhad. Thus, as per the law laid down in the judgment (supra) the suit for pre-emption filed by the respondent could not be decreed. Resultantly, this petition is converted into an appeal and allowed and the suit for pre-emption filed by the respondent stands dismissed." (emphasis supplied) As per record, the respondents were party in the suit for specific performance and they contested the suit upto the Hon'ble Supreme Court of Pakistan. The said suit was decreed in favour of the petitioners and on behalf of the petitioners and others the learned executing court executed sale deed in favour of the petitioners. Now the respondents sent a notice of Talb-e-Ishhad stating therein that on 13.03.2014 at about 4 pm they were sitting in the house of their Baithak i.e. House No.37-G Block, Arifwala District Pakpattan, Sharif, Muhammad Dilshad and Tanveer Ahmad, Rehmat Masih came there, informed regarding sale in question and at once petitioners announced to exercise their right of pre-emption, which fact is written in Paras Nos.3 and 4 of the plaint reproduced above it amounts to making of misstatement which is tainted with a brazen concoction malice and afterthought. The respondents are telling a lie in the plaint and it is well settled law that "a person can tell lies but a document cannot". Reliance is placed on the cases reported as Riasat Ali and 9 others v. Rahim Bakhsh and others (1992 CLC 2193), Masood Pervez Sajid v. Mst. Nawasih Fatima and 2 others (2005 MLD 579), Muhammad Yaqoob v. Hameeda Begum and 4 others (2005 CLC 870) and Mst. Salma Bibi and others v. Muhammad Aslam through L.Rs (2014 YLR 2481). It is proved on record that the respondents contested the suit for specific performance upto the Hon'ble Supreme Court of Pakistan and in execution of decree the learned court executed sale deed in favour of the petitioners and against the respondent. The respondents are estopped/debarred to assert the lack of knowledge regarding sale deed of the suit property, which dismantled the substratum of the entire episode of the case. It is proved on record that the respondent/plaintiff filed the pre-emptory suit with false and fabricated stance and whole story is based on brazen lies and concealment of material facts. Admittedly he filed affidavit with his suit on the basis of untrue facts tainted with mala fide and it can conveniently be observed that he is not a truthful person, which disentitles him from any relief. As per Article 227 the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles. For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:- "

227. Provisions relating to the Holy Quran and Sunnah.-(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. 1[Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.] (2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part. (3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens. Allah Almighty has ordained the Muslims in following verses to be truthful and not to use their oaths as means of deceit between them: Allah Almighty's last and absolute final messenger to humanity Holy Prophet Hazrat Muhammad () has ordered the Muslims to be always truthful in all worldly dealing as quoted hereunder:-

5. As the controversy in hand is regarding the applicability of Order VII, Rule 11, C.P.C. to the proceedings of a suit and plaint can be rejected, if by the plain reading of plaint, (1) it does not disclose cause of action, (2) barred by law and (3) due to deficient court fee or insufficiently stamped. For ready reference provisions of Order VII, Rule 11, C.P.C. are reproduced hereunder:-

11. Rejection of plaint.- The plaint shall be rejected in the following cases:- a) where it does not disclose a cause of action: b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so: c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so: d) where the suit appears from the statement in the plaint to be barred by any law. The claim of the respondent regarding gift of the suit land in his favour through gift mutation stood reversed by the decree of the court of competent jurisdiction, whereafter the respondent became stranger to the suit land and his claim of pre-emptory right does not fall in any of stipulations as enumerated in Section 6 of the Pre-emption Act, 1991, as such he has no cause of action. Additionally, perusal of paras 3, 4 and 6 of the plaint shows that mandatory required information regarding the names of witnesses, contiguity of the land with the sold land and also being joint khata, khasra are also missing, which oust the each and every right of the respondent over the suit land and missing of the above mandatory information in the body of the plaint is against the law. Thus the suit is barred under Section 6 of the Pre-emption Act as well as by the consisting persisting pronouncements of the Hon'ble Superior Courts of the country which manifestly invite the invocation of provisions of Order VII, Rules 11(a) and (d), C.P.C., as such, the learned trial court rightly rejected the plaint of respondent No.1 whereas the learned appellate court has not applied its judicious mind to this material legal and factual aspect of the matter and passed the impugned judgment dated 06.01.2018 without considering Section 6 of Pre-emption Act as well as the ingredients of Order VII, Rule 11, C.P.C. which renders its decision as patently illegal and not sustainable in the eye of law.

6. From the above, it is established that the learned appellate court did not even consider or discuss consistent law on the subject and passed the impugned judgment and decree by committing mis-reading and non-reading of record which also suffers from material illegality and irregularity, as such, the same is not sustainable in the eyes of law and is liable to be set-aside. Reliance is placed on the case titled as Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24).

7. In view of above, this civil revision is allowed. Judgment and decree dated 06.01.2018 passed by the learned Additional District Judge, Arifwala is hereby set aside and order and decree of the learned trial court is hereby maintained and plaint is rejected under Order VII, Rule 11, C.P.C. Cost of Rs.40,000/- is imposed upon the respondent. ZC/S-43/L Revision allowed.