2003 PLP 846 (MLD)

(1) Whether the plaintiff has no cause of action? OPD. (2) Whether the plaintiff is estopped by his words and conduct to file the above mentioned suit? OPD. (3) Whether the suit is incorrectly valued for the purposes of court fee and jurisdiction? OPD. (4) Whether the plaintiff has superior right qua the defendant? OPP. (5) Relief.

3. After recording the evidence of the parties, the plaintiff's suit was dismissed on 9-1-1996 but the learned Appellate Court remitted the case to the learned trial Court to decide an additional issue, which is as under:-- ISSUE No.4-A. Whether the plaintiff fulfilled the prerequisite of filing the suit by complying with the provisions under section 13 of Pre emption Act with regard to Talbs?

4. The learned trial Court found the above issues against the plaintiff and dismissed the suit again on 29-3-1997. The plaintiff challenged the dismissal of his suit by means of an appeal, which was allowed by the learned Additional District Judge, Gujranwala, vide judgment and decree dated 22-10-1997. Hence this revision petition.

5. Learned counsel for the petitioner/defendant has challenged the findings of the learned Additional District Judge, Gujranwala, on Issue No.4-A. He argued that the plaintiff without establishing Talb-e- Muwathibat and Talb-e-Ishhad in accordance with law cannot enforce his right of pre-emption. He submitted that mere placing of postal receipt without producing the concerned clerk of the Post Office is not sufficient compliance of section 13 of the Pre-emption Act. Lastly, he argued that the original notice, which was allegedly received by the vendee, has not been brought on the record and a carbon copy Mark-A has simply been placed on the record without getting in formally proved and exhibited in evidence.

6. Learned counsel for the respondent has supported the judgment mainly on the ground that the acknowledgement receipt (Exh.P.1) and dispatch register (Exh.P.2) issued by the Post Office is sufficient to prove that the notice was sent by the plaintiff/respondent, as such the finding of the trial Court on Issue No.4-A required no interference.

7. I have given anxious consideration to the arguments advanced by the learned counsel for the parties. The plaintiff in a suit for pre-emption is not only required to show that he had dispatched something through the post but also to prove that the postal envelope contained notice and for this purpose the plaintiff should have moved an application to the trial Court seeking production of the original notice and if the same had not been produced, the plaintiff could produce secondary evidence but with the permission of the Court as envisaged under Articles 76 and 77 of the Qanun-e-Shahadat Order, 1984. In the instant case, the plaintiff has not bothered to adopt legal procedure to get the original notice produced or lead secondary evidence with the leave of the Court and since the plaintiff has failed to produce the notice, therefore, the learned trial Court did not allow the petitioner to get the notice (Mark-A) proved and exhibited in evidence. In this way, the plaintiff has failed to prove that he had, in fact, dispatched a notice of Talb-e-Ishhad. Consequently, the findings of the learned Additional District Judge, on Issue No.4-A cannot be maintained. Accordingly, it is set aside. As a consequence, this revision petition is allowed. The impugned judgment and decree passed by the learned Additional District Judge, Gujranwala, is set aside. The plaintiff's suit stands dismissed. H.B.T./Z-143/L Revision allowed.