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P L D 2007 Supreme Court 302 Present: Iftikhar Muhammad

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P L D 2007 Supreme Court 302 Present: Iftikhar Muhammad P L D 2007 Supreme Court 302 Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ Mian PIR MUHAMMAD and another---Appellants Versus FAQIR MUHAMMAD through L. Rs. and others---Respondents Civil Appeals Nos. 1951 of 2000 and 1178 of 2005, decided on 12th December, 2006. (On appeal from the judgments dated 13-5-1999 in C.R. No.342 of 1996 and dated 9-9-2003 in 324-D of 1997 of the Lahore High Court, Rawalpindi Bench, Rawalpindi). (a) Punjab Pre-emption Act (IX of 1991)--- ----S. 13---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether it was mandatory to disclose particulars and details of date, time and place of receiving information about sale and making Talb-i-Muwathibat and also names of witnesses in whose presence such Talb was made, in plaint, in a suit for possession by way of pre-emption; and whether High Court was legally competent and justified to set aside concurrent findings of fact recorded by trial Court and Lower Appellate Court to the effect that requirements of Talb-I-Muwathibat had been duly filfilled before the suit was instituted. (b) Punjab Pre-emption Act (IX of 1991)--- ----S. 13---Right of pre-emption, exercise of---Procedure---Talb-i-Muwathibat and Talb-i- Ishhad---Proof---Non-mentioning of date, time and place of knowledge of sale and date of issue to notice of Talb-i-Ishhad in plaint---Effect---Held, it was necessary that as soon as pre-emptor acquired knowledge of sale of pre-empted property, he should make immediate demand for his desire and intention to assert his right of pre-emption without slightest loss of time---After making Talb-i-Muwathibat, in terms of S.13(2) of Punjab Pre-emption Act, 1991, pre-emptor had another legal obligation to perform i.e. making of Talb-i-Ishhad, as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat---To give full effect to the provisions of S.13(2) and (3) of Punjab Pre-emption Act, 1991, it would be mandatory to mention in plaint the date, place, and time of performance of Talb-i-Muwathibat because from such date the time provided by statute i.e. 14 days, could be calculated---If there was no mention of date, place and time of Talb-i- Muwathibat, then it would be very difficult to give effect fully to S.13(3) of Punjab Pre-emption Act, 1991, and there could be every possibility that instead of allowing letter of law to remain in force fully, pre-emptor might attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same try to justify the delay it any, occurring in performance of Talb-i-Ishhad---Performance of both Talbs successfully is sine qua non for getting a decree in pre-emption suit---Supreme Court approved the view that a plaint wherein date, place and time of Talb-i-Muwathibat and date of issuing notice of performance of Talb-i-Ishhad in terms of S.13 of Punjab Pre-emption Act, 1991, was not provided, it would be fatal for the pre-emption suit---Supreme Court remanded the case to High Court for decision afresh---Appeal was allowed---Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 dissented from. Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 dissented from. Haji Muhammad Salem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sahib'Jamala and others PLD 2005 SC 977 approved. (c) Punjab Pre-emption Act (IX of 1991)--- ----S. 13(2)---Talb-i-Muwathibat---Connotation---Talb-i-Muwathibat is a demand, which is known as jumping demand and is to performed immediately on coming to know of sale. Black's Law Dictionary, 8th Edn. p.764; Webster Comprehensive Dictionary Encyclopaedic Edn, p.631; Noor Khan v. Ghulam Qasim 2003 YLR 570; Muhammad Ali v. Allah Bakhsh 2004 CLC 1949; Rana Muhammad Tufail v. Munir Ahmed and another PLD 2001 SC 13; Mst. Sundri Bai v. Ghulam Hussain 1983 CLC 2441 and Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others C.A.1618 of 2003) rel. (d) Punjab Pre-emption Act (IX of 1991)--- ----S. 13---Civil Procedure Code (V of 1908), O.VI, R.5---Pre-emption suit---Pleadings--- Mentioning of names of witnesses in plaint---Principles---Not necessary to mention names of witnesses in plaint because then it would be a departure from ordinary law of pleadings as Provided in O.VI, R.5, C.P.C.---Evidence is not required to be noted in Pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking jurisdiction of court for redressal of grievance. Haji Nobr Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 rel. Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Civil Appeal No.1951 of 2000). Hafiz S.A. Rehman, Advocate Supreme Court for Respondents (in Civil Appeal No.1951 of 2000). Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (in Civil Appeal No.1178 of 2005). Muhammad Munir Paracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on- Record for Respondents (in Civil Appeal No.1178 of 2005). Date of hearing: 12th December, 2006. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, C J.---In these cases leave to appeal has been granted, inter alia, to examine the following questions:--- (i) Whether it is mandatory to disclose the particulars and details of the date, time and place of receiving information about sale and making of "Talb-i-Muwathibat' and also the names of the witnesses in whose presence this Talb was made in the plaint in a suit for possession by way of pre-emption? (ii) Whether in the instant case, the High Court was legally competent and justified to set aside the concurrent findings of fact recorded by of the appellate and trial Court to the effect that the requirements of "Talb-i-Muwathibat" had been duly fulfilled before the suit was instituted? 2. Mentioning of the facts of each case is not necessary as presently this Bench is required to answer whether in the plaint for a suit for possession by way of pre-emption, details of the date, place and time of sale and Talbs and also names of the witnesses in whose presence the Talbs were made are essential to be mentioned. Essentially, these cases of pre-emption are arising out of statutory law, namely, Punjab Pre-emption Act, 1991 (hereinafter referred to as `the Act'). Section 13 thereof speaks in respect of the performance of the demand of pre-emption including "Talk-i-Muwathibat', `Talb-i-Ishhad' and `Talb-i-Khusumat'. However, presently we are concerned with the Talb-i-Muwathibat and Talb-i-Ishhad. It would be appropriate to reproduce hereinbelow section 13 of the Act hereinbelow for convenience:-- "13. Demand of pre-emption.---(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely:-- (i) `Talb-i-Muwathibat'; (ii) `Talb-i-Ishhad'; and (iii) `Talb-i-Khusumat'. Explanation I. "Talb-i-Muwathibat means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Note. Any word indicative of intention to exercise the right of pre-emption are sufficient. II. `Talb-i-Ishhad' means demand by establishing evidence. III. `Talb-i-Khusumat' means demand by filing suit. (2) When the fact of sales come within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat. (3) 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 knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where owing to lack of post offices 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. (4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2), and Talb-i-Ishhad under subsection (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption." 3. It is well-understood in the ordinary sense that the Talb-i-Muwathibat connotes to a jumping demand. It is also evident from the above provisions of law the Talb-i-Muwathibat means immediate demand by a pre-emptor. As Explanation I to section 13 of the Act provides that Talb-i-Muwathibat means immediate demand by a pre-emptor, therefore it will be necessary to find out the exact meaning and connotation of the word immediate' to determine the time or the period within which the Talb-i-Muwathibat is to be made by the pre-emptor alter coming to know of the sale.
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