1993 PLP 1939 (CLC)

(7) Whether the suit is false and frivolous; if so, whether the defendant is entitled to recover special costs under section 35‑A, C.P.C.? (8) Whether the suit is liable to be dismissed in view of partial pre emption? (9) Whether the suit has been instituted without Zarrar and Zaroorat? (10) Whether the plaintiff has got superior right of pre‑emption" (11) Whether the ostensible sale price of Rs.30.000 has been paid in good faith by the defendant? (12) Relief. Issues Nos.1, 4 and 9 were treated as preliminary. The parties did not lead any ‑vidence on these issues and addressed arguments. Learned trial Court dismissed the suit vide judgment and decree dated 5‑1‑1991 on the ground that the petitioner has failed to deposit 1/3 of the pre‑emption money within time as provided under section 24 of the Punjab Pre‑emption Ordinance, 1990 and that the petitioner has not disclosed as to how he has to suffer "Zarrar" and "Zaroorat" as a consequence of the pre‑empted sale. This judgment and decree was challenged in appeal filed by the petitioner which has been dismissed by Mr. Atta Rasool Joya, learned Additional District Judge, Rawalpindi vide judgment and decree dated 9‑2‑1993. Learned first appellate Court held that as the 1/3 of the pre‑emption money was deposited beyond a period of 30 days from the filing of the suit as `provided under section 24 of the Punjab Pre emption Ordinance, 1990, the suit has rightly been dismissed and that "Zarrar" and "Zaroorat" having not been established on record and the Punjab Pre emption Ordinance, 1990 having stood repealed on 26‑11‑1990, the petitioner had no locus standi nor is left with cause of action, therefore, the suit has rightly been dismissed. These two judgments and decrees have been challenged in this revision by the petitioner. I have asked the learned counsel to point out from the pleadings as to whether he has alleged having made the making of "Talb‑e‑Muwathibat" m the plaint and whether any notice as contemplated under section 13 of the Punjab Pre‑emption Ordinance, 1990 as evidence of Talb‑e‑Ishhad was served upon the petitioner prior to the filing of the suit. Learned counsel has pointed out that the contents of para. No.4 of the plaint do constitute the allegation of making of "Talb‑i‑Muwathibat" and that notice served upon the petitioner, copy whereof has been produced on the record of this case was not required to be attested by the witnesses inasmuch as it is just a formality and, therefore, non‑compliance with the provision of section 13 will not make any difference. Regarding other grounds on the basis whereof, the suit has been dismissed by the two Courts below, learned counsel contends that there being no order to deposit 1/3 of the pre‑emption money hence the petitioner could not suffer on account of non‑deposit of 1/3 of the pre‑emption money and further that the suit could continue even after the repeal of Punjab Pre‑emption Ordinance, 1990. Learned counsel further contends that it was not at all necessary to allege in the plaint that it was a case of "Zarrar" and "Zaroorat" and even otherwise the provision regarding Zarrar and Zaroorat to be alleged and proved in a pre emption suit having been declared as against injunction of Islam, it was not necessary to allege and prove Zarrar and Zaroorat to succeed in this suit. Even otherwise as no issue was framed in this behalf and, hence, without giving an opportunity to lead evidence on this question, the learned Courts below could not have non‑suited the petitioner/plaintiff.

4. I have considered the arguments addressed by the learned counsel for the petitioner and have also gone through the record. Contents of para. No .4 of A the plaint do not reflect making of allegation of "Talb‑e‑Muwathibat" inasmuch as it is not stated in the paragraph as to when the petitioner came to know of tile sale and as to when he announced his intention to file a suit for pre‑ emption. The contents of para. No.4 of the plaint only constitute making of "Talb‑i‑Ishhad". A mode has been prescribed under section 13 of the Punjab Pre‑emption Ordinance, 1990 which was in force at the time of sale and at the time of institution of the suit as well as issuance of a notice upon the petitioner. The notice admittedly is not attested by the two truthful witnesses. Consequently, non‑attestation of the notice by two truthful witnesses is an admitted fact, it stands established that the provisions of section 13 of the Punjab Pre‑emption Ordinance 1990, regarding service of notice prior to the filing of a suit have not been complied with. It is an established legal proposition that without making of "Talb‑e‑Muwathibat" a pre‑emptor does not acquire an enforceable cause of action on the basis of his superior pre‑emptive A right even if he establishes the making of "Talb‑e‑Ishhad". Reliance in this behalf is placed on the law declared on case of Zafar Ali v. Zainul Abidin and another (1992 SCMR 18W).

5. As the suit has been filed without serving of a notice upon the petitioner in accordance with provision of section 13, according to which attestation of the notice by two truthful witnesses is a mandatory condition, it cannot be said that the provisions of section 13 have been complied with. Consequently the suit having been filed without serving of a legal notice upon the petitioner in accordance with provision of section 13 is not maintainable, hence, is liable to be dismissed. Argument of the learned counsel to the effect that the petitioner having not been directed to deposit 1/3 amount of pre emption money cannot suffer the consequences provided under the provision of section 24 of the Punjab Pre‑emption Ordinance is also misconceived. 113 Section 24 specifically excludes the jurisdiction of the trial Court to extend the period of deposit of Zare‑Soim beyond 30 days as is clear from the contents of said Ordinance which are reproduced as under:‑‑ Section 24: , (1) In every suit of pre‑emption the Court shall require the plaintiff to deposit in such Court one‑third of the sale price of the price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale. price is mentioned in the sale‑deed or in the mutation the Court shall require the deposit of one‑third of the probable value of the property. (2) Where the plaintiff fails to mak;; a deposit under subsection (1) within the period fixed by the Court, his suit shall be dismissed. (3) Where the plaintiff withdraws the sum deposited by him under subsection (1), his suit shall be dismissed. ‑ . (4) Every sum deposited under subsection (1) shall be available for the discharge of costs. (5) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre‑emptor. Consequently one‑third of the pre‑emption money having admittedly not been deposited and as the trial Court had no jurisdiction to extend or fix the period for deposit of pre‑emption money bond thirty days w.e.f. the filing of the suit, the suit could not succeed. Reliance in this behalf is placed on case of Awal Noor v. District Judge, Karak etc. (1992 SCMR 740) wherein at page 749 of the report it has been held as under:‑‑ "With respect the distinction made by the High Court of extension of the time one at the behest of the plaintiff and the other when the Court on its own, considers appropriate, is not supported by the language of the law. The first proviso bars the extension of time beyond thirty days by a positive command in the negative. Therefore, if the period cannot be extended on the asking of the plaintiff, it cannot be extended even suo motu. The question of act of God as a reason for extension may have to be examined in another appropriate case. Resultantly, I see no force in this civil revision. The same is dismissed in limine. A.A./M‑1076/L Revision dismissed.