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2000SCMR329

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Irshad Hasan Khan,


Muhammad Bashir Jehangiri, Nasir Aslam Zahid
and Munawar Ahmed Mirza, JJ

Haji NOOR MUHAMMAD ---Appellant


versus
ABDUL GHANI and 2 others---Respondents

Civil Appeal No. 1004 of 1999, decided on 27th October, 1999.

(On appeal from the judgment dated 14-5-1997 of the Lahore High Court, Lahore,
passed in C.R.No.2470-D of 1996).

(a) Punjab Pre-emption Act (IX of 1991)--

----S.13---Constitution of Pakistan (1973), Art. 185(3)---Talab-i-Muwathibat,


requirements of---Leave to appeal was granted by Supreme Court to consider the points
as to whether it was mandatory to give, in the plaint for a suit for possession by pre-
emption, the particulars and details of the date, time and place of Talab-i-Muwathibat
and also the names of the witnesses in whose presence said Talab was made and whether
the High Court was legally competent and justified to set aside the agreed decision, on
a question of fact, of the Appellate and Trial Courts to the effect that the requirements
of "Talab-i-Muwathibat" had been fulfilled before the suit was instituted---Differences
of opinion on disputed points by the Supreme Court Benches having been noted, larger
Bench of the Supreme Court was urged to be constituted by the Chief Justice at an early
date on account of urgency involved in the matter.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Requirements of Talab-i-Muwathibat in a pre-emption suit--Pleading of the


suit may refer to the material facts but law does not require the pleadings to contain gist
of all the facts and names of the witnesses of plaintiff and suit for pre-emption is not an
exception to such general principle---Contention that the requirements of Talab-i-
Muwathibat could not be fulfilled unless details, particulars, date, time and place were
specifically mentioned in the plaint and the names of the persons in whose presence
such Talab was made were also mentioned therein, was repelled.
Shafi Muhammad v. Muhammad Hazar Khan and others 1996 SCMR 346 and Khani
Zaman v. Shah Hussain and others PLD 1998 SC 121 distinguished.

Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 and Amir Jan
and 3 others Haji Ghulam Muhammad PLD 1997 SC 883 ref.

(c) Punjab Pre-emption Act (IX of 1991)--

----S. 13---Civil Procedure Code (V of 1908), O. VI, R.5---Pre-emption suit---


Requirements of Talabs---Plaintiff had specifically referred in the plaint to the two
Talabs having been made---Plaintiff could not be non-suited merely on the ground that
other details of time and place to the Talabs, and names of witnesses etc. had not been
specifically mentioned in the plaint---If defendants had any difficulty in filing their
written statement, they could apply to the Trial Court for further and better particulars
by filing an appropriate application under O.VI, R.5, C.P.C.---No such request was
made by the defendants and they filed written statement without taking any plea therein
that they had been prejudiced on account of any detail or particular having not been
given in the plaint---Plaintiff, held, could not be non-suited in circumstances.

(d) Punjab Pre-emption Act (IX of 1991)---

----S.13(3)---Civil Procedure Code (V of 1908), O.VI--a-Pre-emption suit---


Requirements of Talabs---Talabs had been duly made---Production of copies of notices
under S.13(3), Punjab Pre-emption Act, 1991, sent by the plaintiff to defendants---
Record showed that in the evidence of the plaintiff, copies of notices were produced
which were marked but not exhibited---No objection had been raised by the production
of copies of such notices by the defendants---Trial Court relied upon the said notices in
its judgment and defendants in memo. of their appeal before the Appellate Court neither
took the ground about the admissibility of the copies of such notices nor the plea that
they had not received such notices---Appellate Court, however, allowed additional
evidence regarding acknowledgment receipts showing service of the notices upon the
defendants---No plea with regard to non-receipt of notices by defendants was taken
before the Appellate Court--Plaint also showed that Talabs had been duly made---High
Court, in circumstances, held, erred in holding that the plaintiff had been wrongly
allowed to produce evidence about a fact which had not been pleaded in the pleadings.

(e) Punjab Pre-emption Act (IX of 1991)---

----S.13(3)---Civil Procedure Code (V of 1908), S.115---Pre-emption suit---


Requirements of Talabs---Revision by High Court---Scope---Plaintiff in his plaint had
specifically referred to the making of the Talabs---Copies of notices under S.13(3),
Punjab Pre-emption Act, 1991, had been produced ir: evidence to which no objection
had been raised by defendants---Defendants had not taken any plea in the memo. of
appeal to the effect that notices had not been served---Concurrent findings by Trial
Court and Appellate Court regarding Talabs having been made and notices under
S.13(3) being served upon the defendants were based on evidence adduced before the
Trial Court---No case of misrepresentation was made out---No material irregularity in
the judgments of the Courts below was shown---Such findings of facts were not liable
to interference in revisional jurisdiction by the High Court under S.115, C.P.C.

Malik Abdul Wahid, Advocate Supreme Court and Syed Abdul Aasim Jafri, Advocate-
on-Record (absent) for Appellants.

Sh. Izharul Haq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record
(absent) for Respondents.

Date of hearing: 27th October, 1999.

JUDGMENT

NASIR ASLAM ZAHID, J.---The above appeal, by leave of this Court, calls into
question the judgment dated 14-5-1997 of the Lahore High Court whereby the revision
petition filed by respondents Abdul Ghani and others was allowed and the decree passed
in favour of the appellants Haji Noor Muhammad by the trial Court decreeing his suit
for pre-emption and the judgment in appeal by the Appellate Court confirming the
decree in favour of the appellants were set aside.

2. When this matter was taken up for hearing, learned counsel for the respondents
informed that appellant has since died. An application was filed on behalf of the legal
heirs of deceased Haji Noor Muhammad for bringing his legal representatives on record
which application has been granted after condoning the delay in filing such application

3. We have heard at length the arguments of Malik Abdul Wahid, learned Advocate
Supreme Court for the appellants and Sh. Izharul Haq, learned Advocate Supreme Court
for the respondents. With the assistance of the learned counsel, we have gone through
the record including the judgments of the lower Courts and the High Court.

Leave was granted by order dated 20-7-1999 which reads as follows:--

"Petitioner as plaintiff filed a suit for possession through preemption in respect of sale
of the disputed land brought about through registered sale-deed executed on 21-10-
1990. This suit was contested by the respondents. The learned trial Court decreed the
suit of the plaintiff holding that he had superior right of preemption and that he complied
with the requirements of various ' Talabs' before filing the suit. The findings of the trial
Court regarding the crucial issue No.4 (relating to Talab) and Issue No.7 (pertaining to
superior pre-emptive rights) were affirmed by the learned Appellate Court and
consequently the appeal of the vendees/respondents, was dismissed. The respondents
agitated the matter in the High Court and a learned Judge by the impugned judgment
delivered on 14-5-1997, while confirming his judgment to the issue of ' Talab' (Issue
No.4) held that the essentials of ' Talab' had not been fulfilled in accordance with law
and in absence of that the suit had wrongly been decreed by the two Courts and
consequently, while reversing the judgments of the lower Courts, dismissed the suit of
the plaintiff/petitioner. This petition has been moved to call in question the legality of
the judgment of the High Court and to be granted leave to appeal for this purpose.

2. We heard the learned counsel for the petitioner and for the respondents who appeared
as caveator and studied the case-law on the point.

3. Issue No.4 in the case is reproduced:--

"Whether the plaintiff has not fulfilled the requirements of Talab, if so, what effect?
OPD.

It is to be noted that the High Court reversed the findings of the lower Courts on issue
of 'Talab' on the ground:--

"Neither any date on which the plaintiff came to know about the sale nor the place
where he expressed his desire to pre-empt the land, after coming to know for the first
time not the names of persons in whose Majlis he made that declaration, has been
mentioned."

4. The tenor of the impugned judgment shows that the learned Judge was of the view
that the requirements of 'Talab-i-Muwathibat' cannot be fulfilled unless the details and
particulars of date, time and place are specifically alleged and indicated in the plaint
and the names of the persons in whose presence such a ' Talab' was made, is also
mentioned therein. The learned Judge relied on Shafi Muhammad v. Muhammad Hazar
Khan and others (1996 SCMR 346) for this purpose.

5. We have noted that in the following judgments the view taken in the impugned
judgment has been adopted:--

(i) Khans Zaman v. Shah Hussain and others (PLD 1998 Supreme Court 121).
(ii) Shafi Muhammad v. Muhammad Hazar Khan and others (1996 SCMR 346).

The following are the judgments in which the said view has been dissented from and it
has been held that the details and particulars of date, time and place and the names of
witnesses in whose presence "Talab-i-Muwathibat' was made, need not be alleged with
particulars in the plaint:--

(a) Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCMR 958).

(b) Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 Supreme Court 883).

It is to be noted that in the said both set of cases the respective judgments have been
given by a Bench comprising of two learned Judges.

6. We, therefore, grant leave to appeal to consider the following points:--

(a) Whether it is mandatory to give in the plaint for a suit through possession by the
per-emption the particulars and details of the date time and place of 'Talab-i-
Muwathibat' and also the names of the witnesses in whose presence this 'Talab' was
made?

(b) Whether in the instant case the High Court legally competent and justified to set
aside the agreed decision, on a question of fact, or the appellate and trial Court to the
effect that the requirements of 'Talab-i-Muwathibat' had been fulfilled before the suit
was instituted. ,

We think it proper that in order to resolve the differences of opinion on the disputed
point a larger Bench should be constituted for an early date on account of the urgency
involved in the matter. We, therefore, direct the Registrar to put up the file before the
Honourable Chief Justice of his order. "

4. In the plaint in the instant case (in para.4) it is averred by the plaintiff that the sale
was kept secret by the vendor Fazal Muhammad and the defendants/respondents and
when the plaintiff/appellant came to know about the sale, he made the Talab-i-
Muwathibat and after 4 days he made the Talab-i-Ishhad in the presence of witnesses
but the respondents/defendants did not accept the claim of the appellant and, therefore,
fulfilled the, requirement of Talab-i-Khusumat by filing the suit for pre-emption.

In the preliminary objections in their Written Statement, respondents took up the plea
that the requirements of Talabs had not been fulfilled by the plaintiff and as such the
suit was incompetent and, on merits, he denied para. 4 of the plaint taking up the plea
that the plaintiff was aware of the sale and that he was himself involved in the process
of execution of sale by the vendor in favour of the respondents and that, during the time
when the sale was being finalized, plaintiff did not make any claim nor did he make any
offer of Zar-e-Panjum in connection with any claim of filing the suit of preemption.

5. We may first refer to latest decision of this Court referred in the leave granting order
i.e. Muhammad Ilyas v. Ghulam Muhammad 1999 SCMR 958 (judgment authored by
one of us, Muhammad Bashir Jehangiri, J.), where it was held as follows:--

"12. Reverting to the question on which leave has been granted as to whether the finding
of the learned trial Judge that 'neither the place where the pre-emptor/respondent
obtained the knowledge of the sale was mentioned in the plaint nor were the names of
the persons in whose presence, they learnt of the sale and made Talb-i-Muwathibat,
indicated therein. In C.As. Nos.44, 573 and 574 of 1997 titled Sar Anjam v Abdul Raziq
decided on 30-4-1998 after surveying almost the whole case-law on the requirement of
the procedural law to set out in the pleadings, the details of the evidence and the names
of the witnesses, we have held in para. 10 is as under:--

The above survey of case-law would, thus, lead us to the conclusion that the pleadings
of the parties should contain only material facts and are, therefore, not required to
contain the gist of evidence and names of witnesses. The suit for pre-emption is no
exception to this general proposition which is by now well-entrenched in our judicial
system.'

13. We have, therefore, no hesitation to hold that it is not a sine qua non for the pre-
emptor to specify in the plaint almost all the witnesses in whose presence he had made
Talb-i-Muwathibat and also specifying the time and then to make the said Talab under
section 13 of the Act."

In Amir Jan v. Ghulam Muhammad (PLD 1997 SC 883) it was observed that the
proposition that pleadings are to be liberally construed is that cardinal principle of law
and that, in the case, Talab-e-Muwathibat was alleged in the plaint, issue in that regard
was framed and evidence had been led on such issue even if the fact was not stated with
clarity and in detail in the pleadings. It was then held as follows:--

"The Courts below have concurrently given findings on a question of fact that Talab-i-
Muwathibat was made and the provisions of section 13 have been complied with in
letter and spirit. Such finding is sustainable in the light of the evidence in absence of
any material irregularity. Leave to appeal is, therefore, refused and the petition
dismissed. "
The principle of law enunciated in Muhammad Ilyas v. Ghulam Muhammad (supra)
confirms the view earlier taken in Amir Jan v. Ghulam Muhammad (supra). It was
argued on behalf of the respondents as is also evident from the leave granting order that
the judgments by this Court in Khani Zaman v. Shah Hussain (supra) and Shafi
Muhammad v. Muhammad Hazar Khan (supra) took a different view. However, on
carefully going through these two decisions we find that there is no conflict in the view
and the said two decisions are clearly distinguishable as detailed below.

Para. 5 of the judgment in Khani Zaman v. Shah Hussain (PLD 1998 SC 121) is as
follows:--

"5. Admittedly, no date of ' Talab-i-Muwathibat' is mentioned in the plaint nor place of
acquiring knowledge of transaction is mentioned therein, nor the name of any of the
witnesses is given. Admittedly, the transactions pre-empted by the petitioner were
distinct and separate but the plaint is silent with regard to making of "Talab-i-
Muwathibat' in respect of each transaction. The evidence examined by the petitioner
about the time of making ' Talab-i-Muwathibat' and ' Talab-i-Ishhad' is in conflict with
the case set up by him in the plaint. In the plaint two "Talabs" are said to have been
made on one and the same day, whereas the evidence led by the petitioner showed that
"Talab-i-Muwathibat' was made two days prior to ' Talab-i-Ishhad' . The details
regarding time and place of ' Talab-i-Muwathibat' is an important fact because the
period of limitation for 'Talb-i-Ishhad' is calculated therefrom."

From the above observation it follows that the suit related to two transactions in respect
of which different mutations were attested on different dates but the plaint was silent in
respect of Talab-e-Muwathibat in respect of each transaction and that the evidence
adduced by the petitioner about the time of making Talab-e-Muwathibat and Talab-e-
Ishhad was in conflict with the case set up by him in the plaint. It was further found that
in the plaint two Talabs were said to have been made on one and the same day whereas
the evidence led by the petitioner showed that Talab-e-Muwathibat was made two days
prior to Talab-e-Ishhad. In this context it was further observed that the details regarding
time and place of Talab-e-Muwathibat is an important factor because of period of
limitation for Talab-e-Ishhad is collected therefrom.

In the other case of Shafi Muhammad v. Muhammad Hazar Khan (1996 SCMR 346),
suit for pre-emption filed by the petitioner was dismissed on the ground that he had not
made the necessary Talabs. Petitioner went in appeal which was dismissed and his
revision petition met the same fate when it was dismissed by the High Court. In the
cited judgment, reference was made to para.5 of the plaint in that suit where all that the
plaintiff had mentioned was as under:--
It was observed that it was obligatory for the petitioner to make Talab-e-Muwathibat,
Talab-e-Ishhat and Talab-e-Khusumat and reference was also made to section 13 of the
Punjab Pre-emption Act. This Court came to the conclusion that in the case before it
the averment made in para.5 of the plaint did not justify the conclusion that the
petitioner had made Talabe-Muwathibat or Talab-e-Ishhad as contemplated by law
before making Talab-e-Khusumat. In these circumstances the concurrent findings of the
three Courts including the High Court were confirmed holding that the petitioner had
failed to make the first two Talabs which was sine qua non for pre-empting the sale in
question. This case is also distinguishable inasmuch as the concurrent findings of the
two Courts including the High Court were not interfered by this Court on the ground
that the petitioner/plaintiff had failed to make the first two Talabs.

6. We confirm the view taken earlier by this Court that the pleadings may refer to the
material facts but the law does not require the pleadings to contain gist of all the facts
and names of witnesses of the plaintiff and that the suit for pre-emption is not an
exception to such general principles, which is well established in our jurisprudence.

We are, therefore, unable to endorse the view taken in the impugned judgment of the
High Court that the requirements of Talab-e-Muwathibat cannot be fulfilled unless
details, particulars, date, time and place are also specifically mentioned in the plaint and
the names of the persons in whose presence such Talab is made is also mentioned
therein.

In the instant case, plaintiff had specifically referred in the plaint to the two Talabs
having been made. The plaintiff could not be non-suited merely on the ground that other
details of time and place of the Talabs, and names of witnesses etc. had not been
specifically mentioned in the plaint. It may be added that in case defendants/respondents
had any difficulty in filing their Written Statement, they could apply to the trial Court
for the further and better particulars by filing an appropriate application under Order
VI, rule 5 of C.P.C. No such request was made by the respondents and they filed their
written statement without taking any plea therein that they had been prejudiced on
account of any detail or particular having not been given in the plaint.

7. In the impugned judgment, another reason given for non-suiting the plaintiff is that
in the plaint it was not pleaded that any notice under section 13(3) of the Pre-emption
Act was ever served by the petitioner. The High Court was of the view that in the
absence of such notice and its acknowledgment, the suit of the plaintiff was liable to
fail.

In this regard it may be observed that, in the evidence of the plaintiff, copies of notice
were produced which were marked but not exhibited. Record, however, shows that no
objection had been raised to the production of copies of notices under section 13(3) of
the Pre-emption Act sent by the plaintiff to the respondents. The trial Court relied upon
the said notice in its judgment and we find that, in their memo. of appeal before the
Appellate Court, no ground was taken by the respondents about the admissibility of the
copies of such notices or that respondents had not received such notices.

During the proceedings of the appeal filed by the respondents, the Appellate Court
allowed additional evidence regarding acknowledgement receipts showing service of
the notices upon the respondents. No plea had been taken by the respondents that the
notices had not been received by them. From the impugned judgment it appears that,
according to the High Court, notices had been allowed to be produced as additional
evidence by the Appellate Court. This is not correct. As observed, copies of notices had
already been produced in the evidence adduced by the plaintiff about which, no
objection had been raised and such notices had been relied upon by the trial Court in its
judgment but no grievance was made in their memo. of appeal by the respondents on
such admissibility of notices and reliance thereon by the trial Court. Only the
acknowledgement receipts were allowed to be produced as additional evidence by the
Appellate Court. In the plaint it had been averred that Talabs had been duly made. In
the circumstances the High Court erred in holding that the plaintiff had been wrongly
allowed to produce evidence about a fact which had not been pleaded in the pleadings.

8. The plaintiff had specifically referred to the making of the Talabs in the plaint. Copies
of notice under section 13(3) of the Pre-emption Act had been produced in evidence to
which no objection had been raised by the respondents. No plea had been taken in the
memo. of appeal that such notices had not been served. There were concurrent findings
of the trial Court and the Appellate Court regarding Talabs having been made and
notices under section 13(3) of the Pre-emption Act being served upon the respondents
which concurrent findings of fact were based on evidence adduced before the trial
Court. Such finding and facts were not liable to interference in revisional jurisdiction
by the High Court. No case of misappreciation of evidence was made out. There was
no material irregularity in the judgment of the Courts below calling for interferece by
the High, Court under section 115, C.P.C.

9. As a result this appeal is allowed and the impugned judgment, dated 14-5-1997 of
the Lahore High Court is set aside. There shall be no order as to costs.

M.B.A./N-65/S Appeal allowed.

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