KARAMAT ALI SHAHZAD vs MUHAMMAD ZULQARNAIN and 4 others

' MIAN SAQIB NISAR, J.---On 28-3-2007, respondent No,1 brought a suit for the pre-emption against the petitioner and respondents Nos.2 and 3; in the plaint, there is no mention about the time, venue and above all the very making of Talb-i-Muwathibat; the petitioner contested the matter and took up the objection that the suit should fail as Talb-i-Muwathibat has not been averred in the plaint, thus the right of the respondent/plaintiff on account of the provisions of section 13 of the Punjab Pre-emption Act, 1991, stands extinguished. Be that as it may, issues were framed including on Talbs. The case was adjourned for arguments on the point of maintainability of the suit, when the respondent/plaintiff after a year moved an application on 2-2-2008 seeking the amendment in the plaint so as to add the assertion of Talb-i-Muwathibat, yet no time, venue in this behalf was sought to be specified. The application after contest by the petitioner was disallowed by the learned trial Court vide order dated 28-2-2008; however, on revision of respondent No,1, which was accepted, the application has been allowed vide order dated 21-10-2008. Hence this petition.

2. Learned counsel for the petitioner by making reference to section 13 of the Punjab Pre-emption Act, 1991 (the Act), argues that where the Talbs in accordance with law are not made, right of the preemption stands extinguished. It is also submitted that to assert the Talbs in the plaint is mandatory and the omissions in this regard, shall be fatal to the case of the pre-emptor. Reliance in this behalf, has been placed upon the judgments reported as PLD 2007 SC 302 (Mian Pir Muhammad and another v. Faqir Muhammad through LRs and others) and 2005 SCMR 731 (Akbar Ali Khan and others v. Mukamil Shah and others). It is further argued that the amendment in the pleading cannot be allowed to supply a fatal omission and fill up a lacuna, which if permitted, shall defeat the defence (of the defendant) on a vital issue.

3. Conversely, learned counsel for respondent No.1, has argued that making of Talb-i-Muwathibat and other particulars in this behalf, have been duly mentioned in the notice of Talb-i-Ishhad, attached to the plaint and has been referred to in paragraph No,4 thereof it is due to inadvertence that particulars could not be mentioned in the plaint and this lapse is curable by virtue of amendment. In this regard, he has relied upon the judgments reported as Mst. Rasoolan Bibi v.

Khizar Hayat 2008 SCMR 37}, Munir Ahmad and 7 others v. Additional District Judge, Kasur and 14 others PLD 2001 Lahore 149 and Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651.

4. Heard. As per the provisions of section 13 of the Act, as interpreted by the judgment reported as PLD 2007 SC 302 (Mian Pir Muhammad and another v. Faqir Muhammad through LRs and others), regarding the rule of averments of the plaint about the Talbs, the making of Talb-i-Muwathibat is sine qua non for the maintainability and sustainability of a pre-emptive action, a right which otherwise under the noted section shall be extinguished. Thus, in order to propound and sustain a claim of pre-emption, it is imperative, mandatory and essential for the plaintiff to mention the requisite particulars of the Talbs in the plaint, because if those are missing, the provisions of section 13 of the Act, shall automatically come into play and the Court, at the first hearing of the suit, even without issuing notice to the other side on account of non-making of the Talbs and lack of reference in the plaint, can straightaway dismiss the suit, because in view of section ibid the preemptor's right as stated earlier stands extinguished, meaning thereby that such right has come to an end, cancelled, aborted, wiped out, stultified and stand annulled.

5. The assertions of the two Talbs and averments in this behalf in the plaint are foundational and vital to the case of the pre-emptor to propound and sustain his right at the very inception of the lis and any omission is fatal; thus, such an omission is not a mere defect, which can be termed to be inadvertent or a curable, rather it is a fundamental flaw, which in the pre-emption cases cannot be allowed to be supplied and rectified. And if it is so permitted through an amendment of the plaint, it shall tantamount and shall be analogous to the change of the nature of the case and/or the defence, which according to the settled laws regarding the amendment of the pleadings cannot be granted; besides, it shall defeat the mandate of section 13 of the Act; and where a proposed amendment amounts to infringe and frustrate the law and destroy a right accrued to the opposite, such an amendment is impermissible by virtue of Order VI, rule 17, C.P.C.

' I am not convinced that as Talb-i-Muwathibat has been mentioned in the notice of Talb-i-Ishhad, therefore, such statement be deemed to be the part of the averment of the plaint, suffice it to say that both the Talbs have different significance and connotations and must be specifically and separately averred in the plaint and proved. It may be relevant to point out even the effect of the notice has not been mentioned in the plaint as required under Order VII, rule 9, C.P.C., so that the contention of the petitioner's counsel could be appreciated in the context of above law.

' In the light of above, by allowing this petition, the impugned order of the learned revisional court is set aside and that of the learned trial Court is upheld.