2018 PLP 40 (YLRN)

ABDUL RAHMAN AURANGZEB, J.

Through this appeal, the appellants/defendants (hereinafter to be referred as "the appellants"), seeks the validity of impugned judgment and decree dated 19.02.2011, passed by the learned Civil Judge 1st Class, Jampur, District Rajanpur whereby he decreed the suit of the respondent for possession through pre-emption and judgment and decree dated 23.12.2011 passed by learned Additional District Judge, Jampur, District Rajanpur, by virtue of which the judgment and decree passed by the learned Civil Judge-I" Class, Jampur, was upheld.

2. Briefly facts of the case necessary for the disposal of this appeal are that on 29.11.2008 the respondent/plaintiff (hereinafter to be relerred as "the respondent") filed a suit for possession through pre-emption against the appellants, pre-empting the sale, regarding land measuring 05-marlas plot, situated in Ward No. 14, Jampur City, allet;ing therein that it was sold out to the appellants for a consideration of Its.5,00,000/- on 29.07.2008 vide registered sale deed whereas Rs.I0,00,000/- was got entered as fictitious and inflated price in the registered sale deed just in order to defeat the right of pre-emption of the respondent. It is averred in the plaint that the respondent had superior right of pre-emption and after getting the knowledge of alleged sale for the First time on 27.11,.2008 at 05.00 p.m. when he was sitting in his common meeting room (Visak) 'through informer namely Shakeel Ahmad, in presence of his real son Sajid Hussain, as soon the respondent came to know about the alleged sale, he declared his intention to exercise his right of pre-emption against the appellants, and thereafter sent notices of Talb-e-Ishhad through registered A/D to the appellants on 28.11.2008, duly attested by the truthful witnesses. The respondent further asserted that he, being Shali Sharik, Shafi Khalit, and Shall Jar has got the superior right of pre-emption against the appellants.

3. The suit was vehemently opposed by the appellants while submitting their written statement, controverting the facts as alleged by the respondent in his plaint. The appellants alleged that the respondent was fully aware about the disputed transaction from the very first day, but he miserably failed to fulfill the requirements of jumping demand; that the sale consideration of Rs.10,00,000/- was fixed and paid in good faith immediately after purchasing the suit property, they obtained the possession and raised construction over there. Lastly stated that the appellants had not received any notice of Talb-i-Ishhad, as alleged by the respondent in his plaint; therefore, the suit is liable to be dismissed.

4. In order to resolve the controversy between the parties, learned trial Court framed the following issues:- ISSUES

1. Whether the plaintiff got superior right of pre-emption qua the defendant? OPP.

2. Whether the plaintiff has fulfilled the legal requirements of Talbs in accordance with law? OPP.

3. Whether Rs. Ten lacs has been fixed in good fttith and actually paid to vendor? OPD.

4. If above issue is not proved in affirmative then what was the market value of the suit property at the time of its sale? OPP

5. Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD

6. Whether the suit is not within time ?OPD.

7. Relief After formulating necessary issues, the learned trial Court directed the parties to adduce their respective evidence in support of their claims. The respondent himself appeared as PW-1 and he produced Muhammad Asif, Postal Clerk as PW-2, Sajid Hussain as PW-3, Shakeel Ahmad informer PW-4 and Safdar Hussain clerk counsel as PW-5. In documentary evidence he produced certified copy of registered sale deed No. 1099 dated 29.07.2008 as Ex.P-1, photo copies of notices of Talb-e-Ishhad as Ex.P-2 to Ex.P-4, postal receipts Ex.P-5 to Ex.P-7, copy of registered sale deed No. 189 dated 31.12.1979 in favour of appellants as Ex.P-8 and copies of notification for the year 2008-09 regarding market value as Ex.P-9 & Ex.P-10. In rebuttal, one of the appellants Raheel Anwar appeared as DW-1 and tendered his special power of attorney Ex.D-1 along with the impugned registered sale deed Ex.D-2 and a report of local commission P-3. The learned trial Court, after full-fledged trial, proceeded to decree the suit of the respondent, vide judgment and decree dated 19.02.2011, directing the appellant to deposit remaining sale price within 30-days and in case of failure, the suit shall be deemed to have been dismissed. Being dissatisfied with the above-mentioned findings of the learned trial Judge, the appellants preferred an appeal, which was dismissed vide judgment and decree dated 23.12.2011; hence, this regular second appeal.

5. Learned counsel for the appellants contends that the impugned judgment and decree, passed by both the Courts below are in violation of settled principle of law where the requirement of Talbs was not fulfilled in accordance with law as provided under section 13 of the Pre-emption Act, 1991. He further argued that neither the Postman (who was the most essential witness) was produced in the evidence, nor the acknowledgment due cards were produced by the respondent. Reliance is placed: upon "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105), "Muhammad Hayat v. Muhammad Jaffar" (2009 CLC 259) and "Bashir Ahmad v. Ghulam Rasool" (2011 SCMR 762). Lastly, he prayed that the judgments and decrees, rendered by the learned lower Courts, are liable to be set-aside and the suit of the respondent is liable to be dismissed.

6. On the other hand, learned counsel for the respondent defends the impugned judgments and decrees and submits that the learned counsel for the appellants has failed to point out any illegality and irregularity in the judgments, passed by the learned lower Courts, which are liable to be upheld. He further argued that the above said case laws are not applicable to the case of the respondent, as at the time of initiating of the proceedings of the suit the judgments of the August Supreme Court were not holding the field, hence, the same were not applicable as the suit of the respondent was to be adjudicated on the basis of law prevailing at the time of institution of the suit. Reliance is placed on "Pakistan Through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs" (PLD 1970 Supreme Court 415), "Ghulam Abbas and another. v. Manzoor Ahmad and another" (2008 SCMR 1366) and "Volkart (Pakistan) Ltd., Karach v. Interavia Pakistan Limited, Karachi" (2001 SCMR 671).

7. I have heard learned counsel for the parties and have perused the available record.

8. At the very outset 1 have examined that the learned trial court while decreeing the suit has specifically ordered the respondent to deposit the remaining sale consideration amount within one month failing which the suit shall be considered to be dismissed. While examining the whole record of the learned trial Court I have found that there is no receipt/challan available on the file from where it could be established that after passing the conditional decree the pre-emptor with bona fide intention complied with the order of the learned trial Court dated 19.02.2011 by tendering the remaining sale consideration amount within one month as directed by the learned trial Court. This angle was not taken into notice by the learned appellate Court and the learned appellate Court while exercising his powers in continuation of trial did not examine this vital aspect of the case and for this single reason, the suit of the respondent is not proceedable under Order XX, Rule 14, C.P.C. and the same is liable to be dismissed. Reliance be placed upon case law reported as "Muhammad Siddique Khan v. Sardar Muhammad Akbar Khan and 5 others" (2013 MLD 514)

9. The essential step which is lacking in suit in hand and over-looked by both the Courts below is performance of Talb-i-Ishhad. Although notices were sent to the appellants through registered envelope AD, as asserted by the respondent but they have not been tagged with acknowledgment due cards. The requirement of acknowledgment due cards is the mandatory provision which shows the intention of the respondent. But in the instant case, the acknowledgement due cards were not tendered in the evidence. However, the respondent accepted that the acknowledgment due cards were not received back. In view of this matter, when I examined the evidence of PW-I Mehboob Ahmad, he himself stated that he inquired about acknowledgement due cards from the concerned Post Office but the official of the Post Office informed him that the relevant official was not available at that time. This vague statement of the respondent was not even discussed by both the Courts below, hence, the sending of acknowledgment due card was not proved from the record. Furthermore, the respondent has not made any effort for the collection of the said acknowledgment due cards. Because, if the same had been delivered and had been received back to the respondent then the same would have been tendered in evidence. In other event it would have been followed with an application for inquiring the status of AD Cards whether the same were served upon the appellants or not or refused by the appellants. In this way the service of the alleged notices on the appellants is also not proved.

10. I have anxiously examined the postal receipts which were tendered in evidence as Ex.P-6 and Ex.P-7. In these receipts Ex.P-6 & Ex.P-7 the word acknowledgement due is not mentioned. However, one receipt Ex.P-5 having the status of acknowledgement due. Meaning thereby that the two envelopes dispatched to Raheel Anwar and Shakeel Anwer were not accompanied with Acknowledgment Due Cards and due to this reason the respondent has not produced the A/D Cards or any information or report regarding the status of A/D Cards. It was also the duty of the pre-emptor to procure the record of the concerned Post Office after filing of suit. In this regard, he must have brought into the notice of Post Office that the record is the subject matter of proceedings of court case and the same shall be preserved till the final decision of the suit, but no such effort is made in this case.

11. The Hon'ble Supreme Court of Pakistan in a recent judgment titled as Basharat Ali Khan vs. Muhammad Akbar (2017 SCMR 309), has made the following observations:-- "This Court in its reported judgment in Muhammad Bashir's case (2007 SCMR 1105) has observed. "

11. The requirement of "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due , ". This signifies that the intention of law is not merely a formal notice. on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due " redundant. The service of the addressee, as prescribed in law therefore, is imperative The view expressed in the above referred precedent case has been followed consistently by this Court. More recently in Allah Ditta's case (2013 SCMR 866), the Court has further explained that the plaintiff in a pre-emption suit hears the affirmative onus to prove Talb-i-Ishhad in a case where the respondent/vendee contests the same. Section 13(2) of the Act, 1991 specifies unequivocally that Talb-I-Ishhad shall be made by (i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgement due. The prescribed condition of service of notice by registered cover acknowledgement due may be relaxed where the defendant/vendee admits that he has received notice of Talb-i-Ishhad. In all other cases. service of notice of Talb-i-Ishhad upon a vendee must be established by the proof of each of the afore-noted four prescribed elements of the notice of such Talb. These prescribed elements of the service of a Talb-i-Ishhad notice are specific statutory requirements for the proof of service of notice of. such Tall) which demand has been construed to be a mandatory obligation of a preemptor-plaintiff. This means that if any of the afore-mentioned four elements of the prescribed mode of service of Talb-i-Ishhad is not proven by a plaintiff he dishonours his mandatory obligation and consequently. hio pre-emption suit must fail". It has also been verified from the original record that even the photo 1 copy of envelopes were not produced in the evidence from where it could be ascertained thaUn the_envelopes the word A.D. was mentioned or not which also confirmed that the A.D. cards were not attached with the envelopes. The non-mentioning of words "acknowledgement due" upon the postal receipts and non-production of "acknowledgement due cards" in the evidence, Which is a mandatory obligation under the law which cripples the structure of Talbs. Thus, my candid and firm opinion is that the application of section 13(3) of Punjab Pre-emption Act, 1991, was not followed in its true perspective. Therefore, such default is fatal for his pre-emption suit on account of failure of performance of Talh-i-Ishhad. In this regard, the- learned Courts below completely overlooked these important pieces of evidence and drawn wrong assumption of service or notices.

12. It is further queried from the learned counsel for the respondent that the respondent had failed to examine the Postman, who allegedly delivered the postal documents to the appellants-vendees to prove the factum of service of notices of Talb-I-Ishhad. In reply thereto, learned eounsel for the respondent halfheartedly admitted his lax, which cannot be brushed-aside simply when the pre-emptive right has been invoked by the respondent. After admission of the respondent that he railed to produce the postman, the ratio laid down in cases reported as Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105), and "Allah Ditta through LR's and others v. Muhammad Anar" (2013 SCMR 866): that the mandatory requirement of production of postman as witness was not fulfilled, hence, the pre-requisite of notice of Talb-i-Ishhad was not complied with.

13. The question raised by learned counsel for the respondent that the judgments of the Hon'ble Supreme Court referred above are not applicable to the proposition in hand as the same was passed after the initiation of the proceeding of the learned trial Court. I have thoroughly examined this feature on the pretext of the law settled by the Hon'ble Supreme Court. But before discussion it is appropriate for better appreciation to reproduce Section 13 of the Punjab Pre-emption Act, 1991, which is as under:- Section 13: "Demand of pre-emption.-(1) The right of Poe-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:- (a) Talb-i-muwathibat; (b) Talb-i-ishhad; and (c) Talb-e-khusumat." Explanation.

(I) "Talb-i-Muwathibat" means innnediate 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 words indicative of intention to exercise the right ofpre-emption are sufficient. (11). "Talb-i-Ishhad means demand by establishing evidence. (III). "Talb-i-Khasumat" means demand by filing a suit. (2). When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make "Talb-I-Muwathibat". (3). Where a pre-emptor has made Talb-i-Muwathibat tinder subsection (2), he shall as soon thereafter as possible but not later than two weeks .11o0171 the date of knowledge make Talb-i-Ishhad by sending a - notice in writing attested by two truthful-witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exeocise the right of pre-emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthfid witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat 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."

14. Perusal of above context proves that the requirement of sending of notice through registered post acknowledgment due card is a sine qua non and the interpretation of law by the Apex Court cannot be treated that the same was not applicable to the pending proceedings retrospectively. The effect of retrospectivity with regard to pre-emption was earlier discussed in the dictum reported in "Mst. Bashiran Beguni v. Nazar Hussain and another" (PLD 2008 559). In the said judgment the requirements of mentioning the date, time, place in the plaint and its effect on the pending proceedings after the pronouncement of dicta cited as "Mian Pir Muhammad v. Faqir Muhammad through LRs. and others" PLD 2007 SC 302 was examined. The ratio decidendi in the above settled proposition emerges that the requirements of talbs irrespective to the interpretation given by the Apex Court from time to time cannot be dispensed with material pre-requisites of talbs even the judgment may not rely for decision in the cases. L on case law "Hao Nawaz v. Muhammad Kabir" (2009 SCMR 630) also followed the said principle and again derived a formula of applicability in the pending_ cases regarding the retrospective effect of the judgment of Supreme Court. The crux of the settled proposition is narrated as under:- "As to the next contention of the learned counsel for the petitioner regarding applicability of the above referred case i.e. Mian Pir Muhamad (supra), on the pending cases filed before the pronouncement of the oaid judgthent, it may be mentioned here that proposition in hand stands answered by this Court in the case, of Mst. Bashiran Begum v. Nazar Hussain and another, PLD 2008 SC 559, wherein, it was held that the requirement of mentioning the date, place and time in the plaint is also essential even in the pending cases. The relevant portion of the said judgment reads as follows: - "According to the dictum laid down by the larger bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending cases." Thus this contention too, has no force."

15. It is further needed to examine the ground on the basis of which the effect of retrospectivity in the pending cases, cannot be dispensed with. In this regard the applicability of ruling during the pendency of the litigation extended to the retrospective application. In order to appreciate the arguments regarding retrospectivity it is important to view the scope and meaning of retrospective effect.

16. Retrospective literal meaning envisaged in 'The Chambers Dictionary 12th Edition' is: "looking back, relating to or of the nature of a retrospective, retroactive which looks back over the history or development, applying to or affecting through past, operating backward." The legal position of retroactive legislature is also expressed through "Commissioner Inland Revenue Zone-II, Reginal Tax Office, Multan v. Mrs. Ambreen Fawad C/o Pak Arab Fertilizers Lm1ted, Multan" (PLD 2014 Lahore 72) by learned Division Bench of this Court wherein it is held that:-- "The question is whether beneficial, remedial or curative legislation has. a retrospective effect? Retroactive legislation is looked upon with disfavor, as the general rule, and properly so because of its tendency to be unjust and oppressive . Consequently, in the absence of any indication in the statute that the legislature intended for it to operate retroactively, it must not be given retrospective effect. However, where an Act is procedural, declaratory or explanatory or whether a statute is passed for the purpose of supplying an obvious omission in a former statute, it is to operate retrospectively obviously because it does not affect vested rights. August Supreme Court of Pakistan relied on the following passage .from Statutory Construction by Crawford. "282, Remedial statutes:- Even remedial statutes may be subject to the principles hereinto force discussed, opposing any construction which will give the enactment retrospective operation. Yet, since remedial statutes; are usually looked upon with favour by the Courts, they should be liberally construed. But there appears to be considerable confusion in the cases with reference to giving remedial Acts retrospective effect through construction. If the rule of liberal construction is to be applied, as it obviously should then any doubt should be resolved in favour of retrospective operation, if so operation does not destroy or disturb vested rights, impair the obligations of contracts, create new liabilities, violate due process of law or contravene some other constitutional provision, and if such operation will carry out the intention of the legislature as ascertained through the application of the principle of. liberal construction. In other words, a statute relating to remedial law may properly, in several instances, be given retrospective operation." (Emphasis supplied) On examination of the supra judgments, I am of the firmed opinion that the pre-emption Act enacted since 1991 and the requirement of the said law is under obligation to meet with for the purpose of pre-emption while asserting the claim on the basis of pre-emption according to the said provisions, therefore, the retrospective effect of the supra citations even the suit instituted after the judgments of Apex Court for the elaboration of various aspects of non-performance of Talbs are fully applicable and the same has to be followed/observed.

17. The other aspect, while decreeing the suit of the appellant by the learned trial Court-with regard to Issues Nos.3 and 4, when the sale price alleged by the respondent is Rs.5,00,000, whereas, the registered sale-deed produced by the respondent himself mentioned as Rs.10,00,000/-. The assertion of the respondent that it is the price, which was mentioned with the intention to defeat the very purpose of pre-emption of the respondent, was not substantiated from any evidence. The respondent has failed to produce any kind of evidence through which it could be ascertained that the sale price as alleged by the informer and asserted by the pre-emptor was correct. On the other hand, if the sale price, as referred in the registered sale deed, was actual sale price, then the whole story of the informer gone into falsity that there is no information regarding the sale of the disputed land and it is just a planted story through which the sale in favour of the vendees attacked by invokini the right of pre-emption. In this regard, I have respectful reliance upon judgment reported as Subhanuddin and others vs. Pir Ghulam (PLD 2015 Supreme Court 69), wherein it has been held as under:-- "

10. There is another aspect of the case that requires consideration. The respondent had specifically contended (in his examination-in-chief that the said land had been purchased for only twenty thousand rupees, but without disclosing the source of such information. If the reason for mentioning a lower price was to obtain an advantage the same was not permissible as it would contravene the provisions of shari'ah which have been made specifically applicable to pre-emption cases. Section 33 of the Act stipulates as under:- "

33. Matters ancillary or akin to the provisions of this Act. Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to shari'ah."

11. Shari'ah requires honesty and truthfulness in one's dealing and false statements made to obtain an advantage is an anathema to Almighty Allah: "0, you believe! Be afraid of Allah, and be with those who are true (Surah 9, At-Tauhah, verse 119); "And he not like her who, undoes the threat which she has spun after it has become strong, by taking your oaths a means of deception amongst yourselves, (Surah 16, An-Nahl, verse 92);. "And make not your oaths, a means of deception among yourselves, lest a foot may, slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will he a great torment" (Surah 1 An-Nahl, verse 94). Therefore, when an undue advantage is sought to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee to claim pre-emption. This was not a case where the plaintiff had been unable to establish the price that he contended was paid for the said land, but instead a case where a plea which had no basis in fact was taken to gain an advantage." In this way, the above referred context is sufficient to prove that in the case in hand, the deposition of the witnesses, as well as, pre-emptor are not trustworthy, and deposed only for their mal-designs, the witness deliberately presumed a fake sale price against actual fact of registered sale deed price.

18. For the foregoing reasons, I am of the considered view that both the Courts below have failed to determine material issue of law and facts where a substantial error/defect has been ignored while decreeing the suit of the respondent on the basis of absolute misreading, non-reading- and wrong interpretation of evidence. Hence, the instant second appeal is allowed. Consequently the suit of the respondent/plaintiff is hereby dismissed. Parties are left to bear their own costs. MQ/M-103/L Appeal allowed.