ZAFAR ALI Versus ZAINUL ABIDIN

ORDER

1. MUHAMMAD AFZAL ZULLAH, CJ. ---This leave to appeal petition by a plaintiff in a suit for pre-emption has called in question the dismissal by the High Court of his Civil Revision. The petitioner's suit for pre emption has been dismissed on the ground that the conditions regarding Talb -i-Muwathibat and Talb-i-Ishhad as required by section 13 of the N.-W.F.P. Pre-emption Act, 1987, were not satisfied, therefore, the petitioner's right of pre-emption had been extinguished.

2. The narration of proceedings, the issue involved, the findings and observations by the High Court are as follows:----

3. "The learned Civil Judge, Swabi vide his judgment, dated 28-11-1989 decreed the suit in plaintiff's favour on payment of Rs.4,81,605.17 as the pre-emption amount with no order as to costs. The vendees filed an appeal before the learned Additional District Judge-II, Swabi which was accepted on 301991 and the decree passed by the trial Court in favour of the plaintiff was set aside on the ground that the Plaintiffs right of pre-emption stood extinguished in view of his failure to make the demands in accordance with the provisions of section 13 of the Act. The plaintiff had also questioned the findings of the learned trial Court on Issues Nos.14 and 15 in regard to the sale price and the market value of the suit land through an appeal but his appeal was dismissed by the same appellate Court on 30-4-1991. Feeling aggrieved by the dismissal of his suit by the appellate Court the plaintiff has filed this revision petition wherein he has prayed that the judgment and decree passed by the learned Additional District Judge-II, Swabi may be set aside and that of the learned trial Court be restored.

4. The controversy between the parties at this stage is confined to the findings of the learned lower Courts on Issue No.5, therefore, the point for the determination in this petition is as to whether the petitioner had made the requisite demands of pre-emption namely, `Talb-i-Muwathibat' and `Talb-i-Ishaad' in accordance with the provisions of section 13 of the Act or not.

5. The sale transaction under pre-emption was effected through Mutation No.1357 which was entered on 28-8-1997 and attested on 15-9-1987. It was alleged by the petitioner in para. 2 of the plaint that on coming to know of the sale he had made `Talb-i-Muwathibat' and thereafter had sent Notices in writing under registered cover A/D to the vendees which were duly received by them. However, in his statement recorded by the trial Court on 26-9-1989 he took the stance that he had learnt about the sale mutation on 12th or 13th August, 1988 and had obtained a copy of the mutation through one Muhammad Hanif and had sent the Notices to the vendees under registered cover A.D. on 16th August, 1988 and on the same day he had expressed his intention to pre-empt the suit land. The petitioner ought to have made `Talb-i-Muwathibat' without loss of any time on 12th or 13th of August, 1988 when he had learnt about the sale transaction but he admittedly made it on 16th August, 1988 and as such there is no escape from the conclusion that `Talb-i-Muwathibat' was not made by him in accordance with the provisions of section 13 of the Act. This omission is indubitably fatal to the petitioner's claim of preemption. It was contended by the learned counsel for the petitioner that the petitioner on coming to know of the sale on 12th or 13th August, 1988 had sent one Muhammad Hanif to the quarter concerned for obtaining a copy of the sale mutation for him and this step taken by him was sufficient to indicate his intention to exercise the right off' pre-emption. The contention has no substance because a perusal of the certified copy of the sale mutation Exh.P.W.2/1, which was annexed with the plaint by the petitioner, would show that the petitioner had obtained a certified) copy of the sale mutation through Muhammad Hanif on 12th of September, 1988 and not on 12th or 13th August, 1988 when he had learnt about the sale.

6. Talb-i-Ishhad' was also not made by the petitioner in accordance with the provisions of section 13 of the Act because the Notices Exh.P.W.2/Dl and Exh.P.W./D2 sent by him to the vendees under registered cover acknowledgment due were not attested by any witness 'muchless two truthful witnesses as required by subsection (3) of section 13 of the Act.-

7. Learned counsel for the petitioner has contended that it was not prohibited by section 13 even after gaining the knowledge about the sale to firm up the knowledge by obtaining a copy of the mutation. He has relied on an observation in a Quetta case Malik Nazar Muhammad v. Haji Abdul Rauf PLD 1992 Quetta 9 so as to contend that making inquiries about the details of the sale transaction if they take time, the said time will have to be counted for the knowledge. If the intention of the plaintiff is to supplement his knowledge about the transaction with some further detail in the same Majlis or at the same occasion when he receives information about the transaction it may not be impermissible, provided he intends on the same occasion and in the same Majlis to declare and make `Talb-i-Muwathibat'. Otherwise if not so and time is taken like the one in this case (of some days) in obtaining the copies, this would run against the very spirit of the first Talb. The philosophy of the relevant law being to finish all procedural matters as well as the trial within the shortest possible time so as to avoid complications like attachment with purchased property and/or the escalation of price. Therefore at every step the law allows minimum time. The principles sought to be introduced like those for interpretation of some provisions of law of limitation would in this context be not attracted.

8. The judgment in the Quetta case itself shows that the Shariat Appellate Bench of this Court had in the case of Government of N: W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 emphasized that as soon as the plaintiff learns about the sale he would "without any delay immediately declared that he would exercise the right of Shufa against the said sale". It was emphasized that this declaration shall have to be made before the dispersal of the Majlis in which the plaintiff gains the knowledge about the sale. Thus before that moment if the plaintiff wants to gain some more information it might be possible but not thereafter by making applications for obtaining copies or making inquiries. There is a practical side to this aspect of the law; namely, that by making `Talb' the plaintiff will not be losing anything while not making the `Talb', on the one hand he would be losing the right to pre-empt and on the other he would delay first essential' notice about his intention by way of `Talb-i-Muwathibat'. This view of the law also gets support from further discussion on the subject in the case of Malik Said Kamal. For example, after noticing some aspects of variance on the' question regarding, at what stage in the same Mailis the first Talb should be made, it was held as follows:---

9. The question of the knowledge about the price of land and the plaintiff's need to pre-empt and the thought process in this behalf were also taken note of and it was further observed as follows:-

10. In this case as held by the High Court the above-explained condition was not satisfied by the petitioner, therefore, the condition of the `Talb-i -Muwathibat remained unsatisfied.

11. The second Talb if made on 16-8-1988 on the day that the plaintiff claimed to have made the first Talb, would undoubtedly satisfy the statutory provision in section 13; namely, that `Talb-i-Ishhad' shall have to be made as soon after the first Talb, as is possible. It was possible for the petitioner if he made the first Talb on 16-8-1988 to send the required notice for `Talb-i-Ishhad' on the same day. There was no such hurdle as to take the case beyond the possibility visualised in the expression "as soon thereafter as possible".

12. Thus if the `Talb-i-Muwathibat' is made on the said date i.e. 16th, it being not impossible to send the notice on the same day, the same if gent on 16-8-1988 and if otherwise valid would have to be treated in accord with the requirement of section 13(3), vis-a-vis, the time of sending the notice.

13. But as held in Ghulam Jilani v. Ghulam Muhammad 1991 SCMR 2001 he second Talb, is by way of confirmation of the first Talb. If there is no first Talb there can be no confirmation thereof. Accordingly, for this reason alone here was no valid second Talb. this reason is in addition to the other reasons regarding two truthful witnesses as well as their having attested the notice.

14. Thus in this case the impugned judgment for the aforestated reasons is unexceptionable. Leave to appeal, therefore, is refused.

15. M.B.A./Z-139/S Leave refused.