Sultan vs Noor Asghar

AMIN-UD-DIN KHAN, J. These Civil Appeals have been filed under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973, whereby the Appellant, in both cases, has challenged the judgment dated 24.05.2013, passed by the learned Peshawar High Court, D.I. Khan Bench, in Civil Revisions bearing No.179 and 180 of 2011, filed by the Respondent/V endee. The Civil Revisions were allowed, and the Suit of the Appellant/Pre-emptor was dismissed.

2. Admittedly , the Appellant has not produced the postman to prove the service or refusal of the notice of Talb-i- Ishhad allegedly issued through registered ackn owledgement due by the Appellant/Plaintif f. The learned counsel for the Appellant states that the Vendee/Defendant, when appeared as a witness, admitted the receipt of notice of Shufa , and the same was sufficient to prove that notice had been served. We have gone through the portion of the statement so referred and find that the Vendee/Defendant has not admitted that he has received a notice of Talb-i- Ishhad , duly attested by two truthful witnesses issued within two weeks from the allege d date of knowledge, as pleaded by the Appellant/Plaintif f. Rather , the full statement of DW-1 gives the impression that notice was served by the Court whereafter he contacted the Plaintif f/Appellant, who, upon being contacted by DW-1, had stated that he was being compelled by his sons, hence, he filed the Suit. The statement of DW-1 makes is evident that the notice was served after filing of the Suit, and the notice was issued by the Court. Further , it is on the record, even the original notice of alleged Talb-i-Ishhad has not been produced and got exhibited in the documentary evidence.

3. There is no cavil to the proposition that the Plaintif f/Appellant was required to prove the Talbs in accordance with law. The performance of Talb is not a formality , rather it is substantial for the Plaintif f/Appellant to prove Talbs in accordance with law, otherwise the Suit of the Plaintif f/Appellant is defeated. When confronted with as to whether the Defendant had admitted issuance and receipt of notice of Talb-i-Ishhad in the written statement, answer is negative. In this view, when the Plaintif f/Appellant failed to plead and prove performance of Talbs, a decree on the basis of any defect on the part of the Vendee/Defendant could not be passed. Even the argument that the Defendant has admitted issuance of notice of Talb-i-Ishhad is without force, and factually incorrect. The judgment of this Court reported as Allah Ditta through L.Rs. and others v . Muhammad Anar ( 2013 SCMR 866 ) is relevant.

4. In a suit for pre-emption, the Plaintif f must has to stand on its own legs and may not rely on the weaknesses or admissions of the Defendants to prove the whole claim; the balance of probabilities would not determine the outcome in a suit for pre-emption, which is a suit sui generis in its own nature and requires each Talb to be proved in accordance with the law .

5. In a pre-emption suit, performance of Talbs is a sine qua non before filing a Suit, for instance in a written statement a Vendee/Defendant denies performance of Talb i-Ishhad by the Plaintif f/Pre-emptor and when appears as a witness admits receipt of notice of Talb-i-Ishhad . This admission is not sufficient to hold that the Plaintif f has proved performance of Talb-i-Ishhad because the admission of receipt of notice does not confirm that the notice was sent within two weeks after the date of knowledge by the Plaintif f. It also does not confirm that the same was attested by two truthful witnesses. Furthe r, that the same was sent through registered post acknowledgement due, therefore, we are clear in our mind that the Plaintif f before filing a Suit is required to fulfill the requirements of filing the Suit of pre-emption including perform ance of Talb-i-Ishhad and if he pleads and performs Talb-i-Ishhad in accordance with law only then he can prove the same after producing requisite evidence i.e. that the notice was issued within two weeks from the date of knowledge, it was attested by two truthful witnesses and it was sent through registered cover acknowledgement due where the facility of postal services were available. Though in the case in hand, there is no admission on the part of the Vendee/Defendant as we have noticed supra that notice of Talb-i-Ishhad was received by them confirming the intention to exercise the right of pre-emption.

6. In this view of the matter , no case for interference in the impugned judgment of the learned High Court is made out.

7. Consequently , both the Civil Appeals are dismissed with no order as to cost.