2010 PLP 1111 (CLC)

IMTIAZ ALI, J.

Petitioner has impugned the judgment of learned Alla Ilaqa Qazi, Dir Bala dated 28-2-2006, whereby suit for possession through pre-emption filed by respondent No.1 was decreed and that of learned Izafi Zilla Qazi, Dir Bala dated 5-9-2007 maintaining the judgment of trial Court by dismissing his appeal. Learned counsel for petitioner relying upon PLD 2003 SC 315, 2005 SCMR 431 and 2007 SCMR 1 submitted that the suit of plaintiff was liable to have been dismissed on the solitary ground of non-providing the details as to date and time of performance of Talb-i-Muwathibat in his plaint. He also challenged the findings of two Courts below on the question of superior right of pre-emption of plaintiff on the ground that plaintiff had failed to prove his ownership with regard to the shop as well as its contiguity to pre-empted shop. Learned counsel for respondent on the other hand defended the concurrent judgments of two Courts below on the ground that respondent No.1 had successfully proved performance of Talbs and, therefore, was rightly granted decree for possession through pre-emption. Respondent No.1 in para 2 of his plaint has asserted performance of Talbs, contents whereof are re-produced below:

It is clear from the bare reading of para 2 referred to above that except the date no other details with regard to time and place of performance of Talb-i-Muwathibat have been mentioned. It is also worth mentioning that as per contents of above para there is no mention of the witnesses in whose presence Talb-i-Muwathibat was made, because it says that after performance of Talb-i-Muwathibat Messrs Nadar Khan, Haji Ghulam Muhammad, Muhammad Younas and Rehman-ud-Din were sent to make Talb-i-Ishhad. In case titled Muhammad Saleem v. Haji Khuda Bakhsh reported in PLD 2003 SC 315, it was held that:-- "The date and time is important to be mentioned in the pleadings because therefrom the performance 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-Muwathibat 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-Muwathibat is appreciated and at the second instance the limitation qua the performance of Talb-i-Ishhad is calculated." In a recent judgment Fazal Din v. Muhammad Inayat, PLD 2007 SC 1 plaintiff was non-suited by lower forums on account of not providing the details i.e. the date and time of Talb-i-Muwathibat in plaint and the matter was taken to august Supreme Court. The judgment impugned therein was maintained relying upon, amongst other Akber Ali Khan v. Mukamil Shah and others 2005 SCMR 431, holding that unless date and place of making Talb-i-Muwathibat was specifically mentioned in the plaint or proved through evidence, performance of Talb-i-Ishhad could not be claimed to have been proved in terms of section 13(3) of Punjab Pre-emption Act, 1991. In view of the above pronouncement of august Supreme Court, the argument of learned counsel that plaintiff stood non-suited due to above omission cannot be controverted. The judgments of two Courts below are liable to be reversed on this score alone. There is yet another aspect of the case which also requires consideration. In the instant case although a registered notice of Talb-i-Ishhad was issued duly attested by Nadir Khan, Haji Ghulam Muhammad, Muhammad Younas and Rehman-ud-Din out of whom Haji Ghulam Muhammad and Muhammad Younas appeared as P.W.2 and P.W.3 but in their statements they did not utter a single word about the said notice but instead stated that they had gone to the petitioner as a Jirga telling him that respondent No.1 was desirous of purchasing the suit property. The learned Appellate Court while accepting this position proceeded to interpret relevant provision relating to performance of Talb-i-Ishhad i.e. section 13(3) of N.-W.F.P. Pre-emption Act, 1987 with reference to section 4 of Enforcement of Sharia Act, 1991 reproduced below:-- For the purpose of this Act:-- (a) While interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic Principles and Jurisprudence shall be adopted by the Court; and (b) Where two or more interpretations are equally possible the interpretation which advances the principles of police (sic) and Islamic provisions in the Constitution shall be adapted by the Court." While interpreting section 13(3) of N.-W.F.P. Pre-emption Act, 1987 learned Appellate Court held that by sending Jirga to respondent No.1 requirement of Talb-i-Ishhad was fulfilled. With due deference to learned Judge, he has not interpreted the law but has rather re-written it. Section 13(3) is couched in unambiguous terms and is not capable of such far fetched interpretation. It says in section 13(3) of N.-W.F.P. Pre-emption Act, 1987:-- "Subject to his ability to do so, where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where due 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 truthful witnesses". The bare reading of above provisions shows that it is not capable for more than one interpretation to authorize the Court to interpret it the way it has been done by learned Appellate Court. Proviso to section 13(3) is applicable only in the cases where post office facilities are not available in the area. In the instant case, such facilities were admittedly available that's why respondent No.1 was able to send a registered notice. Besides, in that case too, Talb-i-Ishhad was required to be made by pre-emptor himself in the presence of two truthful witnesses and not by simply sending Jirga, of which he is not a member. The Courts are only called upon to interpret a law when there is any ambiguity therein. When law is not ambiguous as in the present case, the learned Judge could not have gone beyond the letter of law by interpreting it in a way which is absolutely inconsistent or rather contrary to the express intention of legislature. The findings of learned Appellate Court on Talb-i-Ishhad, therefore, are also not in accordance with law and are liable to be reversed. For the foregoing reasons, this civil revision is allowed, judgment of two Courts below are set aside and suit of respondent No.1 is dismissed. H.B.T./130/P Petition allowed.