FAROOQ AHMAD vs FAZAL-UR-REHMAN and another
This petition for leave to appeal arises from a pre-emption suit concerning land in Arifwala Town. The petitioner, claiming a superior right of pre-emption as a Shafi Khalit and Shafi Jar, challenged a sale made by the original owners to the respondent. The petitioner asserted compliance with the requirements of Talb-i-Muwathibat and Talb-i-Ishhad. While the trial court dismissed the suit, the appellate court decreed it in the petitioner's favor. However, the Lahore High Court subsequently set aside the appellate decree, ruling that the petitioner failed to satisfy the requirement of making Talb-i-Ishhad 'as soon as possible' under the Punjab Pre-emption Act, 1991, because he delayed the notice until three days after the Talb-i-Muwathibat without providing sufficient justification for the delay. The core legal question before the Supreme Court is whether the High Court correctly interpreted the statutory requirement of 'as soon as possible' under Section 13(3) of the Punjab Pre-emption Act, 1991, and whether a three-day delay in sending the Talb-i-Ishhad notice constitutes a failure to comply with the mandatory provisions of the Act. The Supreme Court granted leave to appeal to examine these contentions.
- Does the phrase 'as soon as possible' in Section 13(3) of the Punjab Pre-emption Act 1991 require a pre-emptor to justify a delay of three days between Talb-i-Muwathibat and Talb-i-Ishhad?
- Is a delay of three days in making Talb-i-Ishhad fatal to a suit for pre-emption under the Punjab Pre-emption Act 1991?
- Section 13(2), Punjab Pre-emption Act 1991
- Section 13(3), Punjab Pre-emption Act 1991
' MIAN MUHAMMAD AJMAL, J.---Leave to appeal is sought against the judgment of the Lahore High Court, Multan Bench, Multan, dated 26-4-2000, whereby Civil Revision No,129 of 2000 of the respondents was allowed, the judgment and decree of the Appellate Court, dated 15-2-2000 was set aside and that of the trial Court, dated 17-2-1999 was restored.
2. Brief facts are that Nasim Iqbal Akhtar and others sold the disputed land measuring 2 Marlas 2 Sarsahis situated within urban limits of Arifwala Town, District Pakpattan on 17-5-1994 to respondent No,1 for sale consideration of Rs,40,000 through registered sale deed. The petitioner came to know about the sale on 11-9-1994 and he immediately made Talb-i-Muwathibat in presence of witnesses claiming superior right of pre-emption and he made Talb-i-Ishhad on 14-9- 1994 through registered Notice A.D. And made Talb-i-Khasumat by filing a suit for pre-emption on 14-1-1996, inter alia, on the grounds of being Shafi Khalit and Shafi Jar. During pendency of the suit, respondent No,1 exchanged the suit property on 16-12-1994 mutation whereof was sanctioned on 18-12-1994, which was also challenged by the petitioner by impleading respondent No,2 as defendant. The suit was resisted by the respondents by filing separate written statements. The trial Court on divergent pleadings of the parties, framed issues, recorded evidence of the parties and on assessm ent thereof dismissed the suit vide judgment, dated 17-2-1999. Feeling aggrieved with the said judgment, the petitioner filed an appeal which was accepted by the Additional District Judge, Pakpattan vide his judgment, dated 15-2-2000, the judgment of the trial Court was set aside and the suit was decreed. The said judgment was assailed by the respondents before the Lahore High Court, Multan Bench, Multan through Civil Revision No,129-D/2000 which has been allowed as stated above in para 1.
3. Learned counsel for the petitioner contended that according to subsection (3) of section 13 of the Punjab Pre-emption Act, 1991 (hereinafter to be called the Act), where the pre-emptor has made Talb-iMuwathibat under subsection (2) of section 13 of the Act, he shall, thereafter, as soon as possible but not later than two weeks from the date of knowledge of the sale, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered post acknowledgement due to the vendee confirming his intention to exercise the right of pre-emption.
He added that Talb-i-Muwathibat was made on 11-9-1994 and Talb-i-Ishhad was made through registered notice which was sent on 14-9-1994 i.e, within three days whereas time limit prescribed by law is two weeks from the making of Talb-i-Muwathibat. He submitted that the learned Judge of the High Court was of the view that the words used in the above subsection 'as soon as possible' were not complied with and no valid reasons were given for not making Talbi-Ishhad on 12th or 13th of September, 1994 and in absence of such evidence it was held that Talb-i-Ishhad made on 14-9- 1994 was not in accordance with the requirement of subsection (3) of section 13 of the Act.
4. After hearing the learned counsel for the parties, we grant leave, inter alia, to consider the above contentions.