2016 PLP 245 (MLD)

MUHAMMAD DAUD KHAN, J.

Through the instant revision petition, the petitioner has assailed the judgment and decree of learned Senior Civil Judge, Karak, dated 22.12.2010 and that of Additional District Judge-I, Karak dated 11.02.2012, whereby the former dismissed the suit of petitioner/plaintiff while the latter upheld the judgment and decree of trial court.

2. Succinct facts giving rise to the instant petition are that Noor Shahzan, the plaintiff (now represented by his LRs) instituted a suit for possession through exercise of right of pre-emption under the Khyber Pakhtunkhwa Pre-emption Act, 1987 (hereinafter called as the Act) against the respondents/defendants, who are vendees of the suit land under mutation No.7308 attested on 21.11.2007.

3. As per averments in the plaint, the petitioner/plaintiff came to know about the suit sale on 26.11.2007 (Monday) at 10.00 hours in his house, situated in village Khoja Khel through Sajid Zaman, in presence of Awal Zaman (his son). He allegedly immediately performed Talab-e-Muwathibat, there and then, in presence of the above named witnesses. Later on, in confirmation of the first talab, through registered AD the petitioners/plaintiff sent to the vendees/defendants notices Talab-e-Ish'had, which were duly attested by the two marginal witnesses, namely, Awal Zaman and Muhammad Yousaf.

4. The averments of the plaint were controverted by vendees-defendants in their written statement, raising therein variety of objections legal as well as factual. The controversial pleadings of the parties resulted into framing of issues. Pro and contra evidence was recorded. On conclusion of trial, both the learned Trial Court and appellate Court dismissed the suit of the petitioners/pre-emptor vide impugned judgments and decrees dated 22.12.2010, and dated 11.02.2012 respectively mainly on the ground of nonperformance of Talabs according to law.

5. Mr. Umer Daraz Khan, learned counsel for the petitioners argued that requirements of service of notice of Talab-e-Ish'had as contained in section 13 (3) of the Act, are not mandatory in nature, as the said notice is only for procedural matter. He further argued that the right of pre-emption cannot be defeated on account of non-mentioning of the date of performance of Talb-e-Ish'had in the plaint and it can be proved by producing the receipt of sending notice and attesting witnesses of notice Talb-e-Ish'had. Developing his arguments he further argued that plaintiff being an old man unable to attend the court, that is why he appointed attorney and recorded his statement through him and there is no bar in the law to appoint an attorney, hence learned both the courts below have erred in law by not relying on the statement recorded through attorney.

6. Conversely, Malik Akhter Nawaz, learned counsel for the respondents/defendants opposed the arguments advanced by learned counsel for petitioners and supported the judgments and decrees of both the courts below by arguing that non- mentioning of date of performance of Talab-e-Ish'had in the plaint is fatal to the case of pre-emptor and the petitioner being having good health recording of his statement through attorney is against the spirit of section 14 of the Act.

7. I have given my consideration to the respective arguments of learned counsel for the parties and have gone through the record with their valuable assistance.

8. Perusal of the plaint reveals that plaintiff has mentioned the details of date, time and place of performance of Talb-e-Muwathibat in his plaint, however, the date of notice Talb-e-Ish'had is not disclosed therein. By now, it is settled law that all the details, with full particulars i.e. name of informer, date, time and place of performance of Talb-e-Muwathibat as well as date of Talb-e-Ish'had, are mandatory requirements to be mentioned in the plaint, so that plaintiff may prove the same during the trial. The philosophy behind this rule is that a plaintiff may not improve his/her case during the trial, nor he/she may make any departure from his/her pleadings. The law requires that a plaintiff pre-emptor should come forward with all the details about talabs in the plaint, which if missing would be fatal to the very foundation of the case. An in depth study of the case law would show that the august Supreme Court of Pakistan has held this view in a number of cases. In case titled "Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs." (PLD 2007 SC 302), a larger bench of august Supreme Court has held:-- "Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-e-Muwathibat and date of issuing the notice of performance of Talb-e-Ish'had in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit." This judgment was further followed by the hon'ble apex Court of Pakistan in case titled "Mst. Bashiran Begum v. Nazar Hussain and another" (PLD 2008 Supreme Court 559). The Court held:-- "This Court has approved the view that a plaint wherein date, place and time of making of Talb-e-Muwathihat and date of issuing notice of Talb-e-Ish'had in terms of section 13 of the Act, is not provided, it would be fatal for the pre-emption suit. The Hon'ble Bench of five judges has dissented from the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal heirs and another (2000 SCMR 314) and has approved the view expressed in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) Fazal Subhan and 11 other v. Mst. Sahib Jamala and others (PLD 2005 SC 977). 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." Again this view was expressed in case titled "Fazal-ur-Rehman v. Khurshid Ali and another" (2012 SCMR 635) and "Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911) in the latter case, it was held that:-- "Performance of both these talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that a plaint wherein date place and time of making of Talab-e-Muwathibat and date of issuing notice of Talab-e-Ish'had in terms of section 13 of the Act, is not provided, it would be fatal for the pre-emption suit." The above dictum has further been supplemented in a directive judgment of the apex Court, in "Dilbar Khan v. Muhammad Ashraf" (PLD 2013 Supreme Curt 171), given the directive nature of the judgment, its relevant part is reproduced below for a ready reference. "Being conscious of the dicta of this Court whereby while declaring a particular law as ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) and a specific cut off date as to when the judgment would take effect and further providing for saving the decision/decree passed prior thereto, we are of the view that latest judgment/verdict of this Court not falling within the above category, which enunciates the principle of law, in respect of a specific/ particular law by interpreting the same e.g. (pre-emption/rent/ family) that such judgment shall be given fullest effect and should be strictly followed till the time the lis stands finally terminated/determined. Meaning thereby that it (lis) is not pending before any forum (not the apex Court); this should be irrespective when the case was instituted or the decision was passed by the first Court or subsequent courts. It is the final and conclusive judgment/opinion of the apex Court deciding a question of law, or based upon or enunciates a principle of law which shall have the binding effect and should be adhered to in letter and spirit, obviously if it otherwise qualify the test of precedence over the earlier view, under the known principles of interpretation and application of the "precedent case law". In our opinion, the instant case was/is squarely covered by. Pir Muhammad case at the revisional stage and the revisional Court was duty bound to decide the matter as per thereto in terms of Article 189 of the Constitution. Besides, it has not been candidly controverted by the learned counsel when confronted by the Court during the course of hearing, that in the evidence the appellant was required to testify/establish/ prove the said particulars, but on examination of the evidence, it reveals that those (particulars) are conspicuously missing. None of the witnesses produced by the appellant with regard to Talb-e-Muwathibat has deposed about the date, time and venue of making the Talb-e-Muwathibat. Therefore, on this ground alone, we are not persuaded to interfere in the impugned judgment. This appeal accordingly has no merit and is dismissed."

9. The second question involved in this revision petition pertains to the non-appearance of the plaintiff himself in the witness box to prove his case. Admittedly the plaintiff/petitioner, did not personally appear in support of his case, instead he was represented by his attorney. Power of attorney placed on file as Ex: PW2/1. The legal question that needs to be dealt with by this Court is that whether attorney who has not made talabs himself on behalf of the pre-emptor can prove the same through his statement before the Court? To resolve this question I deem it necessary to go through section 14 of the Act, which reads:--

14. Demand by guardian or agent.

where a person is unable to make demands under section 13 his guardian or agent may make the required demands on his behalf.

10. The law provides that Talabs may be made through guardian or agent, which shall be proved by the statement of such guardian or agent. In the instant case, Talabs were performed by the petitioners/pre-emptor, not by his agent. In other words, the alleged performance of Talabs, being the personal act of petitioner/pre-emptor, could not be proved by the testimony of agent. If at all, the pre-emptor could not record his/her statement before the trial Court for any valid reason, she/he should have requested for issuance of commission within the meaning of Order XXVI, Rule 1 of the Civil Procedure Code, 1908.

11. In my view nonappearance of plaintiff himself before the Court to record his statement to prove performance of talabs, he did not qualify the legal requirement for the proof of talabs under the pre-emption law. For this view I am fortified by the dictum laid down in Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957):-- The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-e-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (ibid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-e-Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-e-Muwathibat himself and appear in Court in person."

12. The defendants/respondents had denied the contention of plaintiff, about performance of Talb-e-Muwathibat and Talb-e-Ish'had in their written statement as well as in their statement before the court. By this unequivocal denial of the defendants, the plaintiff was under obligation to produce the postman to prove delivery of registered notice of Talb-e-Ish'had, in compliance with the principle set by the Hon'ble Supreme Court in cases titled "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105), "Basheer Ahmed v. Ghulam Rasool" (2011 SCMR 762) and "Allah Ditta through L.Rs and others v. Muhammad Anar" (2013 SCMR 866). But he did not produce the concerned postman and thereby failed to discharge the onus of proof. Consequently, Talb-e-Ish'had is not proved on this ground, too.

13. Moreover, the informer Sajid Zaman, who is also the grandson of the plaintiff, while appearing as PW4 has not stated a single word with regard to the date, time and place, where he allegedly furnished information regarding the suit sale to plaintiff. The statement of Awal Zaman PW2, in whose presence plaintiff allegedly made first Talb, is in contradiction with the informer Sajid Zaman PW

4. Hence, the petitioner/ plaintiff has failed to prove performance of Talb-e-Muwathibat.

14. Further the AD cards Ex:PW 2/10 to Ex:PW 2/17, having no stamp of the post office to prove that the AD cards were sent along with registered envelope containing the notice Talb-e-Ish'had, hence the requirement of section 13 of the Act, has not been complied with. Moreover, interesting thing is that the suit was drafted on 03.03.2008, instituted on 04.03.2008, whereas the AD cards show the date of delivery on 04.03.2008, whereas in Para two of the plaint, it has been mentioned that AD cards are annexed herewith. The question arises that how on 03.03.2008 the plaintiff was in possession of AD Cards, which have date of delivery as 04.03.2008. The answer is very much clear that the AD cards are bogus.

15. It need no emphasis that for successful exercise of right of pre-emption, the proof of superior right of pre-emption, performance of Talb-e-Muwathibat and then Talb-e-Ish'had, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal.

16. Both the Courts below have rightly dismissed the suit of the petitioner by properly appreciating the evidence available on record and applying the law on the subject correctly. The scope of revisional jurisdiction is very limited in which the Court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor can it upset the same, even if, on appreciation of evidence, a different view can be formed, unless these findings are shown to have been the outcome of a jurisdiction vested but not exercise or jurisdiction not vested, but exercise or one of material irregularity. I did not find any infirmity or misreading and non-reading of evidence in the impugned judgments which may warrant interference or this Court in the concurrent finding of facts recorded by two Courts below. In this respect reliance is placed on, "Muhammad Rashid Ahmed v. Muhammad Siddique" (PLD 2002 SC 293) and "Muhammad Idrees and others v. Muhammad Pervaiz and others" (2010 SCMR 05).

17. This revision petition being without any substance, stands dismissed, with no order as to costs. ZC/125/P Revision dismissed.