2004 PLP 2067 (YLR)

5. It was further argued that the respondent/plaintiff even did not mention the date, time and place when he made Talb‑i‑Mowasibat in his statement recorded before the Court. None of the witnesses examined in support of his case also mentioned the said fact in their Court's statement.

6. It was further a ed that P. Ws.5 and 6 were attesting witnesses of the notice of Talb‑i‑Ishhad, Exh.P.W.4/1, but they were never confronted with the said notice to verify as to whether they had signed/thumb‑impressed the notice of Talb -i‑Ishhad.

7. On the other hand, Mr. Abdul Sattar Khan, the learned counsel representing the respondent/plaintiff, argued that mentioning of date, time and place in the plaint was not sine qua none as held by the August Supreme Court of Pakistan in 2000 SCMR 314 and 2000 SCMR 329.

8. It was also argued that the notice of Talb‑i‑Ishhad was sent in the name of Muhammad Yunas not only on his village address but also on his UAE address as is clear from the postal receipts available on record.

9. It was also argued that Mutation No. 14062 was entered on 4‑7‑1990 but was attested on 29‑7‑1990. Even no witness stated about the gaining, of knowledge after one month of the mutation and the period of one month was calculated from the date of entry of the mutation.

10. It was further argued that the attesting witnesses to the notice of Talb‑i‑Ishhad Exh.P.W.4/1 when produced stated to have signed/thumb‑impressed the same but nowhere question was asked in cross examination as to whether the signature/ thumb‑impression on the notice of Talb‑i Ishhad was of their or not.

11. I have heard the arguments of the learned counsel for the parties at length and perused the record.

12. The argument of the learned counsel for the petitioners/defendants that neither the date, time or place when Talb‑i Mowasibat was made, was mentioned in the plaint nor the plaintiff disclosed the name of any person from whom he gained knowledge of the alleged sale either in his plaint or in his statement before the Court, therefore, he failed to prove Talb‑i Mowasibat, has force in it. The perusal of the plaint shows that in paragraph No.1 he only stated that:

13. The amended plaint was filed 14‑7‑1994 but in paragraph No.4 of the said plaint the respondent /plaintiff stated:‑‑ Neither the date nor place nor the time when he made Talb‑i‑Mowasibat was mentioned in the plaint nor did he mention as to from whom he gained knowledge of the alleged sale. Non‑mentioning of the place, date and time of Talb‑i‑Mowasibat was fatal to the case of respondent/plaintiff. In Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 it was held:-- "It is a settled principle of law that in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the plaintiff in specific so that the limitation is computed accordingly. It has never been made permissible in the realm of civil law that a plaintiff who does not disclose the point of time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same. In our view it is important to tell the date and time of the performance of Talb‑i‑Mowasibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb‑i‑Mowasibat in the same meeting and before the dispersal thereof. The date and time is important to be mentioned in the pleadings because therefrom, the perfor mance of Talb‑i‑Ishhad has to be computed so as to be within 15 days. As mentioned earlier, in civil cases in general the point of time qua the accrual of knowledge requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The cases of pre‑emption should not be an exception to the general law and the day and time of performance of Talb‑i‑Mowasibat which is simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings so that, at the first instance the immediacy of the Talb‑i‑Mowasibat is appreciated and at the second instance the limitation qua the performance of Talb‑i‑Ishhad is calculated. This aspect has never been argued in any case before this Court where the view happens to be expressed to the contrary. Conceding of course, that the material constituting evidence may or may mentioned in the pleadings." Basing on the above mentioned judgment, a similar view was taken in Shaibar v. Babu 2003 CLC 1439 by this Court also.

14. Likewise non‑disclosing the source of information regarding the sale and the name of the parson before whom he made Talb‑i‑Mowasibat would amount to non‑fulfilling the requirements of D section 13(3) of the N.‑W.F.P. Pre‑emption Act, 1987 as held in Mst. Shamim Akhtar v. Kh. Maqsood Ahmad 1998 SCMR 2227.

15. The learned Appellate Court has failed to appreciate the above mentioned legal position, therefore, it has committed material irregularity. Without addressing to the other arguments advanced by the learned counsel for the parties, I allow the revision petition in hand, set aside the impugned judgment and decree passed by the learned Appellate Court and restore that of the learned trial Court dated 14‑4‑1997. There shall be no order as to costs. H.B.T./123/P Revision allowed.