Mian PIR MUHAMMAD and another- vs FAQIR MUHAMMAD through L.Rs, and others

TFTIKHAR 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 arc arising out of statutory law, namely, Punjab Preemption Act, 1991 (hereinafter referred to as 'the Act'). Section 13.

' There of speaks in respect of the performance of the demand of preemption including "Talb-i- Muwathibat', 'Talb-i-Ishhad' and `Talb-iKhusumat'. However, presently we are concerned with the Talb-iMuwathibat and Talb-i-Ishhad. It would be appropriate to reproduce herein below section 13 of the Act herein below 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:--

(a) `Talb-i-Muwathibat';

(b) 'Talb-i4shhad'; and

(c) `Talb-i-Khusurnat'.

' 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 preemptor 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-iIshhad 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 preemption: ' 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 niay make Talb-i-Ishhad in the presence of two truthful witnesses.

(4) Where a pre-emptor has satisfied the requirements of Talb-iMuwathibat 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-cmptor. 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 after coming to know of the sale. For this purpose the meaning of the word 'immediate' will have to be examined from the dictionaries and from the decided cases, if any.

' In Black's Law Dictionary, Eighth Edition one page 764 defines the word 'Immediate' to mean "occurring without delay; instant". ' in Webster Comprehensive Dictionary Encyclopedic Edition on page 631 the word 'immediate' has been defined to mean "without delay; instant."

' The definition and meaning of the word "immediate" has been considered by courts in several cases and it will be appropriate to refer to some of the decided cases relating to the definition of the word "immediate". In the case or Noor Khan v. Ghulam Qasim (2003 YLR 570) Lahore High Court while deeding the case arising out of preemption suit pronounced that word "immediate" would mean to act immediately, suddenly or a sudden rise or moment. The Court also took into consideration the meaning of jumping demand and observed that it would mean immediate demand made by the pre-emptor in the same meeting and sitting without any loss of time as soon as he received the information about the sale. In the case of Muhammad Ali v. Allah Bakhsh (2004 CLC 1949)_the word "immediate" was interpreted to mean doing of a thing at once and without any delay.

4. It is observed that great emphasis and importance is to be given to this word in making of Talb- i-Muwathibat and it is necessary that 'as soon as the pre-emptor acquired knowledge of 'the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest los's of time. According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat, in terms of section 13(2) of the Act, the pre-emptor has 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- Mbwathibat, therefore, the question can conveniently' be answered by holding that to give full effect to the provisions of subsections(2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i- Muwathibat because from such date, the time provided by the statute. i,e, 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Miwathibat then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-iMuwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ishhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the-mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately C on coming to know of .Sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of section 13 of the Act. This Court in the case of Rana Muhammad Tufail. v. Munir Ahmed and another (PLD 2001 SC 13), declined to grant leave to appeal maintaining the judgment of the learned High Court as there was four hours delay in making the Talb-iMuwathibat from the time of receiving the knowledge of the sale. In the case of Mst. Sundri Bai v. Ghulam Hussain (1983 CC 2441) High Court of Sindh, held the delay of 1-1/2 hour. In making Talb-i-Muwathibat to be fatal to the scheme of Shufa when the pre-emptor was residing on the first floor while the purchaser /respondent was residing on the ground floor of the -same building. In another case of Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (C.A. 1618 of 2003) this view was endorsed.

5. Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor. Muhammad v. Abdul Ghani and 2 others (2000 SCM R 329) decided on 27-10-1999 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCM R 314)- decided on 15-11-1999, wherein the consensus was that in view 'of the law of pleadings, it is not necessary to give the details including the date, place and time of performance of Talb-i-Muwathibat. With utmost respect it is observed that while expressing the above view this Court did -not take into consideration in detail the, importance and implication of the word immediate as has been provided in Explanation I to section 13 of Act 1991 otherwise there was every possibility of arriving at the view which we arc intending to take in this case. However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order 6 Rule 5, C.P.C. As evidence is not required to be noted in the pleadings and only necessary D 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 the jurisdiction of the Court for the redressal of grievance. Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v.

Mst. Sahib Jamala and others (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-i-Muwathibat.

Therefore, we endorse the view taken in the judgments and approve that a pliant wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i- Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit.

6. In view of the above discussion, the question is answered in affirmative and now the cases shall be fixed before the respective Benches for decision after taking into consideration their respective evidence accordingly.