FAZAL FAQIR Versus SAID HAROON KHAN

ABDUL LATIF KHAN, J.--- This civil revision has been filed against the judgment and decree dated 12-1-2007 passed by learned Additional District Judge/ Izafi Zilla Qazi, Lower Dir, whereby appeal filed by the respondent against the judgment and decree dated 28-6-2006 of Trial Court, was accepted, judgment and decree of trial Court was set aside and suit of the petitioner was dismissed.

2. Short facts of the case are that petitioner-plaintiff filed a suit against respondents for possession through pre-emption, which was contested by filing written statement. Learned trial Court after framing of issues, recording pro and contra evidence and hearing the parties, decreed the suit, vide judgment and decree dated 28-6-2006.

3. Feeling aggrieved, Syed Haroon defendant No.2, filed an appeal, which was accepted by learned Additional District Judge/Izafi Zilla Qazi, Dir lower Timergara, vide judgment and decree dated 12-1-2007, judgment and decree of trial Court was set aside and suit of the plaintiff was dismissed, hence, the present revision.

3A. Learned counsel for the petitioner contended that suit filed by the petitioner for possession through pre-emption was decreed by the Trial Court and has been dismissed by the court of appeal on the sole ground that notice Talb-e-ishhad exhibited in the Court was Photostat copy and that plaintiff has admitted that he is in possession of original notice. It is contended that this is no ground to non-suit the plaintiff and findings to this effect are the result of whim and caprice. He added that notice Talb-e-Ishhad carries original signatures and thumb impression of the executant and marginal witnesses and can be considered as original. Reliance placed on Shoukat Hayat's case, reported in 2005 YLR 60 (Lahore).

4. As against that, learned counsel for respondent contended that suit of the petitioner was dismissed only on the point of non-availability of original notice Talb-e-Ishhad and rightly did so by the Court of appeal as Photostat notice sent by the plaintiff would not amount to compliance of section 13(3) Khyber Pakhtunkhwa Pre-emption Act, 1987, (herein-after to be referred as Act). Reliance placed on case Hikmat Ali Shah v. Mst. Mira reported in 2000 CLC (Peshawar) 336.

5. I have considered the arguments advanced by learned counsel for parties and gone through record of the case.

6. The perusal of record reveals that plaintiff has been non-suited by the appellate Court on the only ground that original notice Talb-e-Ishhad has not been sent to the vendee as required under the provisions of Section 13(3) of the Act, as Photostat notice could not be treated as original and wisdom is derived from this Court's judgment in case of Hikmat Ali Shah reported in 2000 CLC 336. The relevant portion of the judgment is as follows:--

"Clearly, the requirement of Section 13(3) of the N.W.F.P., Pre-emption Act, 1987 is that the vendee should be served with original notice of Talb-i-ishhad, which, sadly in the instant case is lacking as the plaintiff retained the original notice with himself and sent photo copy of the same to the vendee. Photo copy cannot be treated as original and this is clear from the illustration (a) of Article 74 of the Qanun-e-Shahadat which expressly states that a photo copy is secondary evidence of its contents. This provision of law clearly suggests that photo copy of a document cannot take the place of primary evidence and it is simply secondary evidence. Article 165 of the Qanun-e-Shahadat does not benefit the petitioner for short and simple reason that under this provision, the Court has discretion to allow production of any evidence that may have become available because of modern device or technique while in the instant case no such permission was granted and indeed it could not be granted as photo copy is secondary evidence of its contents".

This Court in case of Rooh ul Qadoos v. Muhammad Rafique and 2 others reported in 2002 CLC 379 observed that issuance of Photostat notice to co-vendee while one of the vendees served with original notice could be considered as compliance of relevant provisions of law. The relevant provision is reproduced for guidance. "mere fact that one of the vendee was issued original notice whereas the remaining were served with Photostat copies, the same by itself could not be considered a good ground to dislodge the pre-emptor, who was co-sharer in the suit property."

In case of Azam Khan v. Shafi Ullah Khan, reported in 2011 MLD 1966, this Court has observed as follows:--

"Photostat copy of such notice exhibited in evidence in statement of its scribe and two marginal witnesses without proving same through secondary evidence---Validity---Original of such notice was supposed to be in possession of vendee, thus, pre-emptor had no option except to produce its Photostat copy, which would be sufficient for proof of such Talb---Pre-emptor had proved receipt of such notice by vendee through A/ D Card and evidence of postman."

In case of Shoukat Hayat v. Liaqat reported in 2005 YLR 60 (Peshawar), it was observed that photo copy of the notice carried the original signatures of the executant and witnesses, such copy shall be considered as original document.

Section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 reads as follows:-

"13. Demand of pre-emption.---(1) ..

(a)

(b)

(c)

Explanation.---(1) ....

(ii) ..

(2) ..

(3) Where a pre-emptor has made Talb-e-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-e-Ishhad 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 pre-emption:

Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two witnesses."

A look at the above provision and case laws cited above would reveal that the plaintiff-pre-emptor subject to availability to do so has made Talb-i-Muwathibat shall as soon as possible not later than two weeks, from date of sale or knowledge whichever may be earlier, under section 13(3) of the Act, the pre-emptor is required to make Talb-e-Ishhad notice, attested by two truthful witnesses, under registered cover acknowledgement AD to the vendee by confirming his intention to exercise his right of pre-emption. The clear intention of the legislature is to send a notice in the mode and manner as prescribed in the provisions referred above and no room is left to interpret the same otherwise by making addition of sending photo copy of the notice to the vendee. The plaintiff in the instant case while appearing as witness has deposed that he is in possession of original notice which ought to have been in possession of the vendee if made as required under the law in the name of the vendee and the plaintiff was not supposed to be in possession of the same and that is why it can be observed that the plaintiff has not sent the notice under the law rather opted to send photo copy which cannot be treated as original. Article 74 of the Qanun-e-Shahadat Order expressly envisages that photo copy of the document cannot take place the primary evidence as it is simply a secondary evidence and plaintiff/pre-emptor has failed to comply with the provision of section 13(3) of the Act referred above.

7. The perusal of the notice Talb-i-Ishhad, Exh.P.W.1/1, shows that one notice was scribed in the names of three vendees which too is against the provisions of section 13 of the Act as the same provides the clear mandate of serving notice on each of the vendee separately and on this score too, the plaintiff failed to comply with the referred provisions of the Act.

8. Quite apart from this, the plaintiff has not mentioned the date of sending a notice Talb-i-Ishhad in the plaint, which is fatal to the case. Wisdom can be derived from the case Mst. Bashiran Begum v. Nazar Hussain and another, reported in PLD 2008 SC 559, wherein his lordship of the apex Court observed that:--

"It is mandatory to mention in plaint date, time and place of knowledge about sale and making of Talb-i-Muwathibat as in absence thereof it was not possible to calculate correctly 14 days time for making Talb-i-Ishhad---Non-mentioning in plaint date, place and time of making Talb-i-Muwathibat and date of issuing notice of Talb-i-Ishhad, would be fatal to suit".

The plaintiff was non-suited by the appellate Court only on the score of sending Photostat copy of notice Talb-i-Ishhad and rightly did so and in addition to that neither date of Talb-i-Ishhad notice was mentioned in the plaint nor the notice was separately served on the defendant-vendee as required under the law and, as such, the plaintiff is liable to be non-suited on these scores too. The Court of appeal has given the findings with conscious and application of independent judicial mind warrant no interference.

For the aforesaid reasons, the instant civil revision is dismissed.

AG/197/P Revision dismissed.