P L D 2010 Lahore 341 (PLP)

IJAZ UL AHSAN, J.

The petitioners challenge order dated 12-2-2009 passed by the learned Civil Judge, Hafizabad, which was upheld in appeal vide order dated 25-5-2009 passed by the learned Additional District Judge, Hafizabad.

2. The petitioners purchased a parcel of agriculture land measuring 10 Kanals, 3 Marlas from respondent No.2 vide Mutation No.375 attested on 28-8-2007. On 2-2-2008, respondent No.1 Mehr Muhammad filed a suit for possession through pre-emption. The petitioners resisted the suit and filed an application under order VII, Rule 11, C.P.C. for rejection of the plaint. The application was dismissed and the revision filed against the said order did not succeed.

3. The learned counsel for the petitioners submits that it is a mandatory requirement of section 13 of the Punjab Pre-emption Act, 1991 that the time, date and place of Talb-e-Muwathibat must be mentioned in the plaint. He has drawn my attention to para 3 of the plaint in which the plaintiff has stated that he came to know about the sale transaction for the first time on 29-10-2007, when he was appearing in the Court of learned Civil Judge, Hafizabad in some other matter, in which the respondent made a statement that he had sold the suit property in favour of Atta Ullah etc. At that time Faiz Ahmad, Muhammad Younas, Riasat Ali and Zafar Iqbal were also present in the Court. As soon as he gained knowledge, he immediately expressed his' desire to take the land through exercise of his right of pre-emption.

4. The learned counsel submits that failure to mention the time of making Talb-e-Muwathibat is fatal to the suit. The learned subordinate Courts ignored this fact and the dicta of the superior Courts on the subject, which calls for interference by this Court. He further submits that there has been failure on the part of the learned subordinate Courts to notice binding precedents of superior Courts, as such the findings of the learned subordinate Courts are liable to be interfered with in exercise of constitutional jurisdiction of this Court. The learned counsel relies on Muhammad Nawaz and 7 others v. Muhammad Ibrahim and 5 others (1986 CLC 1680).

5. In response to the notice sent by this Court, the respondents have entered appearance. The learned counsel for the respondents submits that a pre-emptor is not required to state in detail the date, time and place of making Talb-e-Muwathibat. It is sufficient, if he dispatches the notice and files the suit within the timeframe provided by law. The pre-emptor cannot be knocked out merely because he failed to furnish the details of Talb-e-Muwathibat. The learned counsel further argues that minor clerical omissions cannot be used to non-suit a bona fide pre-emptor. The law does not favour throwing away the pre-emptor just on the basis of technicalities. The learned counsel relies on Khadim Hussain v. Ghulam Eissa and others (2009 SCMR 488) and Hayat Muhammad and others v. Mazhar Hussain (2006 SCMR 1410). Adds that the purpose of mentioning of date, time and place in the plaint is to ensure that no inaccuracy occurs in correctly calculating the 14 days time provided in law for fulfilling Talb-e-Muwathibat. He argues that in view of the fact that Talb-e-Muwathibat was performed on 12th day of performance of Talb-e-Muwathibat, non-mention of exact time when Talb-e-Muwathibat was made is of no consequence. He has referred to the definition of time given in Black's Law Dictionary 7th Edition where time has been defined as, "1.A measure of duration, 2.A point in or period of duration at or during which something is alleged to have occurred, 3.Slang. A convicted criminal's period of incarceration." He argues that the word time used with reference to performance of Talbs is in the general sense of the word and indicates a duration and there is no requirement to give exact time/moment when Talb-e-Muwathibat was made.

6. Heard. Record perused.

7. The questions raised in this petition have come up for hearing before this Court as well as the Honourable Supreme Court of Pakistan on various occasions. Survey of the judgments rendered by the honourable Supreme Court of Pakistan between the years 2001 to 2009 indicates that there was divergence of opinions in judgments rendered by different Benches of this Court as well as the honorable Supreme Court of Pakistan. However, the controversy was put to rest by a five members Bench of Honourable Supreme Court of Pakistan in its judgment rendered in Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302). In view of the instructive nature of the judgment and relevance of the findings given in the said judgment to the case in hand, I consider it appropriate to 'reproduce a portion of the judgment:-- "

2. Mentioning of the facts of each case is not necessary as presently this Bench is required to answer whether in the plaint for a suit for possession by way of pre-emption, details of the date, place and time of sale and Talbs and also names of the witnesses in whose presence the Talbs were made are essential to be mentioned. Essentially, these cases of pre-emption are arising out of statutory law, namely, Punjab Pre-emption Act, 1991 (hereinafter referred to as `the Act'). Section 13 thereof speaks in respect of the performance of the demand of pre-emption including "Talb-e-Muwathibat",, "Talb-i-Ishhad" and "Talb-i-Khusumat." However presently we are concerned with the Talb-e-Muwathibat and Talb-i-Ishhad. It would be appropriate to reproduce herein below for convenience:- "

13. Demand of pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders namely:- (a) "Talb-e-Muwathibat". (b) "Talb-i-Ishhad" and (c) "Talb-i-Khusumat." Explanation I.

"Talb-e-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption. Note. Any word indicative of intention to exercise the right of pre-emption are sufficient. II. "Talb-i-Ishhad" means demand by establishing evidence. III. "Talb-i-Khusumat" means demand by filing suit. (2) When the fact of sales comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat. (3) Where a, pre-emptor has made Tabl-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where owing to lack of post offices facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibab under subsection (2), and Talb-i-Ishhad under subsection (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."

3. It is well-understood in the ordinary sense that the Talb-i-Muwathibat connotes to a jumping demand. It is also evident from the above provisions of law the Talb-i-Muwathibat means immediate demand by a pre-emptor. As Explanation 1 to section 13 of the Act provides that Talb-i-Muwathibat means immediate demand by a pre-emptor, therefore, it will be necessary to find out the exact meaning and connotation of the word `immediate' to determine the time or the period within which the Talb-i-Muwathibat is to be made by the pre-emptor after coming to know of the sale. For this purpose the meaning of the word `immediate' will have to be examined from the dictionaries and from the decided cases, if any. In Black's Law Dictionary, English Edition on page 764 defines the word `immediate' to mean "occurring without delay; instant" In Webster Comprehensive Dictionary Encyclopaedic Edition on page 631 the word `immediate' has been defined to mean 'without delay; instant." The definition and meaning of the word `immediate' has been considered by Courts in several cases and it will be appropriate to refer to some of the decided cases relating to the definition of the word `immediate'. In the case of Noor Khan v. Ghulam Qasim (2003 YLR 57) Lahore High Court while deciding the case arising out of pre-emption suit pronounced that word `immediately' would mean to act immediately, suddenly or a sudden rise or moment. The Court also took into consideration the meaning of jumping demand and observed that it would mean immediate demand made by the pre-emptor in the same meeting and sitting without any loss of time as soon as he received the information about the sale. In the case of Muhammad Ali v. Allah Bakhsh (2004 CLC 1949) the word `immediate' was interpreted to mean doing of a thing at once and without any delay.

4. It is observed that great emphasis and importance is to be given to this word in making of Talb-i-Muwathiba at it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted properly he should made immediate demand for his desire and intention to assert his right, of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talb-i-Ishhad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing. Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of section 13 of the Act. This Court in the case of Rana Muhammad Tufail v. Munir Ahmad and another (PLD 2001 SC 13) declined to grant leave to appeal maintaining the judgment of the learned High Court as there was four hours delay in making the Talb-i-Muwathibat from the time of receiving the knowledge of the sale. In the case of Mst. Sundri Bai v. Ghulam Hussain (1983 CC 2441) High Court of Sindh, held the delay of 1-1/2 hour in making Talb-i-Muwathibat to be fatal to the scheme of Shufa when the pre-emptor was residing on the first floor while the purchaser/respondent was residing on the ground floor of the same building. In another case of Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (C.A. 1618 of 2003) this view was endorsed." In the operative part of the aforesaid judgment, the Honourable Chief Justice of Pakistan writing for the Court held as follows: "Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhand and 11 others v. Mst. Sahiba 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." The aforesaid view has also been taken by the Honourable Supreme Court of Pakistan in Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404) where it was observed as follows:- "In the present case, the pre-emptor made a general statement than on having acquired knowledge of sale of suit-land, he expressed his intention to pre-empt suit-land in the presence of two truthful witnesses on 4-5-1993. Admittedly, the sale of suit-land was made on 1-3-1993. It was, therefore, necessary for the pre-emptor to have mentioned the date, time and place of receiving information of sale of suit-land in the notice sent by him by way of Talb-i-Ishhad as well as in' the plaint, but such course was not adopted by him. The date, time and place as well as the presence of two witnesses were not mentioned in the plaint. In the facts and circumstances of the present case, it was imperative for the pre-emptor to have mentioned the date, time and place as well as names of the persons in whose presence he had received the information of sale of suit-land as well as having proclaimed his intention and desire to exercise his right of pre-emption in respect of suit-land. The question, whether the `notice was issued within the statutory period of 14 days from the date of receiving information of sale and making of Talb-i-Muwathibat, and whether the suit was filed within the period of 120 days from the date of information of Talb-i-Muwathibat, could not be properly adjudicated in the absence or omission to mention the date and time of information of sale, and such omission relative to date, time and place as well as the names of the witnesses in the notice of Talb-i-Ishhad and plaint would be fatal to the suit of the pre-emptor

Suit was dismissed in circumstances." The view taken in Mian Pir Muhammad's case was also followed in Haq Nawaz v. Muhammad Kabir (2009 SCMR 630).

8. As observed in the aforesaid judgments, Talb-i-Muwathibat is a jumping demand and is required to be performed immediately on coming to know of the sale. In Rana Muhammad Tufail's case ibid, the Honorable Supreme Court of Pakistan declined to grant leave to appeal maintaining the judgment of the High Court, as there was four hours delay in making Talb-i-Muwathibat from the time of receiving knowledge of the sale. In Mst. Sundri Bai's case 101/2 hours delay in making Talb-i-Muwathibat was held to be fatal.

9. Perusal of para 3 of the plaint, portion of which have been reproduced above indicates that there was a generalized assertion that on gaining knowledge of the sale, the petitioner expressed his intention to get the disputed land by exercising his right of pre-emption. There can be no two opinions that the exact time is neither mentioned nor is ascertainable from the averments made in plaint. The argument of the learned counsel for the respondents that the rationale for requirement to mention the time at which Talb-i-Muwathibat was made is solely to provide a starting point for calculation of the period of 14 days within which Talb-i-Ishhad has to be made, has not impressed me. If that was the rationale, there was no need to insist on disclosure of time and date, because the said purpose could easily have been served by mentioning a date as is the requirement in other laws in which the statute of the limitation is applicable. The requirement to mention time appears to be grounded in the word "immediate" mentioned in section 13, Explanation 1 of the Punjab Pre-emption Act, 1991, which requires that Talb-i-Muwathibat must immediately by made in the sitting or meeting (Majlis in which the pre-emptor has come to know of the sale, declaring his intention to exercise the right of pre-emption. This essentially means that demand must be made without delay and instantly, which cannot be established unless a specific time, when the demand was made, is mentioned in the plaint. It also appears that the reason for insistence that the exact time be given in addition to providing a starting point for calculation of 14 days period, also serves an independent purpose namely proof of the fact that Talb-i-Muwathibat was made immediately, instantly and without delay, which is an independent requirement of law of pre-emption.

10. Examined from this angle and in the light of the judgment of the Honourable Supreme Court of Pakistan it appears that the plaint suffered from a fatal defect. A perusal of the judgment of the learned subordinate Courts indicates that this aspect of the case may not have been brought to their notice or they were unaware of the settled position of law on the subject. This constitutes misreading/non-reading of evidence in addition to failure to notice and act in accordance with the binding precedents of superior Courts. The learned subordinate Courts have failed to exercise jurisdiction vested in them.

11. For the aforesaid reasons, I accept this petition and set aside the orders dated 12-2-2009 passed by the learned Civil Judge, Hafizabad and dated 25-5-2009 passed by the learned Additional District Judge, Hafizabad. As a result the application filed by the petitioner under Order VII, Rule 11, C.P.C. is accepted. The suit for possession through pre-emption filed by the respondent is dismissed.

12. No order as to costs. S.A.K./S-95/L Petition accepted.