Commercial property

2017 CLCN 99 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 3 & 13(3)Right of pre-emptionCommercial propertyFulfilment of required TalbsScope

Plaintiff contended that he made immediate demand to exercise his right of pre-emption as shafi shareek and had fulfilled all demands/Talbs

Vendee contended, at the first instance, that right of pre-emption could not be exercised in case of commercial property and even if such right could be invoked, pre-emptor must prove his case fulfilling all the requirements of Talbs

Validity

Right of pre-emption was only to safeguard the privacy of Muslim families and the same could not be enforced in case of commercial property because the question of disagreeable neighbour in such would not arise

Evidence showed that vendee had specifically denied the receipt of any notice of Talb-i-Ishhad, it was imperative upon the pre-emptor to prove dispatch and delivery of said notice to the vendee but none of the witnesses had stated that notice under S. 13 of the Act under registered cover A.D as well as receiving the same by the vendee

Neither the scribe of the notice was produced nor the detail of sale was given by the concerned witness

No suggestion had been put to the vendee that he had received the said notice and the copy of postal receipt A.D. had been exhibited in counsel's statement; it emerged that dispatch of notice was neither alleged nor proved; said Talb had not been proved, which was sine qua non

Even if it was admitted that pre-emptor performed and proved Talb-i-Muwathibat, non-performing of Talb-i-Ishhad was sufficient to disbelieve the version of pre-emptor, as performance and proving of all Talbs was essential in order to succeed in such suit

Two courts below had failed to appreciate evidence and law on the subject in its true perspective

Judgments and decrees of two courts below were set aside and suit was dismissed

Regular second appeal was allowed accordingly.