NOOR MUHAMMAD Versus ABDUL GHANI

NASIR ASLAM ZAHID, J.-- -The above appeal, by leave of this Court, calls into question the judgment dated 14-5-1997 of the Lahore High Court whereby the revision petition filed by respondents Abdul Ghani and others was allowed and the decree passed in favour of the appellants Haji Noor Muhammad by the trial Court decreeing his suit for pre-emption and the judgment in appeal by the Appellate Court confirming the decree in favour of the appellants were set aside.

2. When this matter was taken up for hearing, learned counsel for the respondents informed that appellant has since died. An application was filed on behalf of the legal heirs of deceased Haji Noor Muhammad for bringing his legal representatives on record which application has been granted after condoning the delay in filing such application

3. We have heard at length the arguments of Malik Abdul Wahid, learned Advocate Supreme Court for the appellants and Sh. Izharul Haq, learned Advocate Supreme Court for the respondents. With the assistance of the learned counsel, we have gone through the record including the judgments of the lower Courts and the High Court.

Leave was granted by order dated 20-7-1999 which reads as follows:--

"Petitioner as plaintiff filed a suit for possession through pre emption in respect of sale of the disputed land brought about through registered sale-deed executed on 21-10-1990. This suit was contested by the respondents. The learned trial Court decreed the suit of the plaintiff holding that he had superior right of pre emption and that he complied with the requirements of various ' Talabs' before filing the suit. The findings of the trial Court regarding the crucial issue No.4 (relating to Talab) and Issue No.7 (pertaining to superior pre-emptive rights) were affirmed by the learned Appellate Court and consequently the appeal of the vendees/respondents, was dismissed. The respondents agitated the matter in the High Court and a learned Judge by the impugned judgment delivered on 14-5-1997, while confirming his judgment to the issue of ' Talab' (Issue No.4) held that the essentials of ' Talab' had not been fulfilled in accordance with law and in absence of that the suit had wrongly been decreed by the two Courts and consequently, while reversing the judgments of the lower Courts, dismissed the suit of the plaintiff/petitioner. This petition has been moved to call in question the legality of the judgment of the High Court and to be granted leave to appeal for this purpose.

2. We heard the learned counsel for the petitioner and for the respondents who appeared as caveator and studied the case-law on the point.

3. Issue No.4 in the case is reproduced:--

"Whether the plaintiff has not fulfilled the requirements of Talab, if so, what effect? OPD.

It is to be noted that the High Court reversed the findings of the lower Courts on issue of 'Talab' on the ground:--

"Neither any date on which the plaintiff came to know about the sale nor the place where he expressed his desire to pre-empt the land, after coming to know for the first time not the names of persons in whose Majlis he made that declaration, has been mentioned."

4. The tenor of the impugned judgment shows that the learned Judge was of the view that the requirements of 'Talab-i-Muwathibat' cannot be fulfilled unless the details and particulars of date, time and place are specifically alleged and indicated in the plaint and the names of the persons in whose presence such a ' Talab' was made, is also mentioned therein. The learned Judge relied on Shafi Muhammad v. Muhammad Hazar Khan and others (1996 SCMR 346) for this purpose.

5. We have noted that in the following judgments the view taken in the impugned judgment has been adopted:--

(i) Khans Zaman v. Shah Hussain and others (PLD 1998 Supreme Court 121).

(ii) Shafi Muhammad v. Muhammad Hazar Khan and others (1996 SCMR 346).

The following are the judgments in which the said view has been dissented from and it has been held that the details and particulars of date, time and place and the names of witnesses in whose presence "Talab-i-Muwathibat' was made, need not be alleged with particulars in the plaint:--

(a) Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCMR 958).

(b) Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 Supreme Court 883).

It is to be noted that in the said both set of cases the respective judgments have been given by a Bench comprising of two learned Judges.

6. We, therefore, grant leave to appeal to consider the following points:--

(a) Whether it is mandatory to give in the plaint for a suit through possession by the per-emption the particulars and details of the date time and place of 'Talab-i-Muwathibat' and also the names of the witnesses in whose presence this 'Talab' was made?

(b) Whether in the instant case the High Court legally competent and justified to set aside the agreed decision, on a question of fact, or the appellate and trial Court to the effect that the requirements of 'Talab-i-Muwathibat' had been fulfilled before the suit was instituted. ,

We think it proper that in order to resolve the differences of opinion on the disputed point a larger Bench should be constituted for an early date on account of the urgency involved in the matter. We, therefore, direct the Registrar to put up the file before the Honourable Chief Justice of his order. "

4. In the plaint in the instant case (in para.4) it is averred by the plaintiff that the sale was kept secret by the vendor Fazal Muhammad and the defendants/respondents and when the plaintiff/appellant came to know about the sale, he made the Talab-i-Muwathibat and after 4 days he made the Talab-i-Ishhad in the presence of witnesses but the respondents/defendants did not accept the claim of the appellant and, therefore, fulfilled the, requirement of Talab-i-Khusumat by filing the suit for pre-emption.

In the preliminary objections in their Written Statement, respondents took up the plea that the requirements of Talabs had not been fulfilled by the plaintiff and as such the suit was incompetent and, on merits, he denied para. 4 of the plaint taking up the plea that the plaintiff was aware of the sale and that he was himself involved in the process of execution of sale by the vendor in favour of the respondents and that, during the time when the sale was being finalized, plaintiff did not make any claim nor did he make any offer of Zar-e-Panjum in connection with any claim of filing the suit of pre emption.

5. We may first refer to latest decision of this Court referred in the leave granting order i.e. Muhammad Ilyas v. Ghulam Muhammad 1999 SCMR 958 (judgment authored by one of us, Muhammad Bashir Jehangiri, J.), where it was held as follows:--

"12. Reverting to the question on which leave has been granted as to whether the finding of the learned trial Judge that 'neither the place where the pre-emptor/respondent obtained the knowledge of the sale was mentioned in the plaint nor were the names of the persons in whose presence, they learnt of the sale and made Talb-i -Muwathibat, indicated therein. In C.As. Nos.44, 573 and 574 of 1997 titled Sar Anjam v Abdul Raziq decided on 30-4-1998 after surveying almost the whole case-law on the requirement of the procedural law to set out in the pleadings, the details of the evidence and the names of the witnesses, we have held in para. 10 is as under:--

The above survey of case-law would, thus, lead us to the conclusion that the pleadings of the parties should contain only material facts and are, therefore, not required to contain the gist of evidence and names of witnesses. The suit for pre-emption is no exception to this general proposition which is by now well- entrenched in our judicial system.'

13. We have, therefore, no hesitation to hold that it is not a sine qua non for the pre-emptor to specify in the plaint almost all the witnesses in whose presence he had made Talb-i-Muwathibat and also specifying the time and then to make the said Talab under section 13 of the Act."

In Amir Jan v. Ghulam Muhammad (PLD 1997 SC 883) it was observed that the proposition that pleadings are to be liberally construed is that cardinal principle of law and that, in the case, Talab-e-Muwathibat was alleged in the plaint, issue in that regard was framed and evidence had been led on such issue even if the fact was not stated with clarity and in detail in the pleadings. It was then held as follows:--

"The Courts below have concurrently given findings on a question of fact that Talab-i-Muwathibat was made and the provisions of section 13 have been complied with in letter and spirit. Such finding is sustainable in the light of the evidence in absence of any material irregularity. Leave to appeal is, therefore, refused and the petition dismissed. "

The principle of law enunciated in Muhammad Ilyas v. Ghulam Muhammad (supra) confirms the view earlier taken in Amir Jan v. Ghulam Muhammad (supra). It was argued on behalf of the respondents as is also evident from the leave granting order that the judgments by this Court in Khani Zaman v. Shah Hussain (supra) and Shafi Muhammad v. Muhammad Hazar Khan (supra) took a different view. However, on carefully going through these two decisions we find that there is no conflict in the view and the said two decisions are clearly distinguishable as detailed below.

Para. 5 of the judgment in Khani Zaman v. Shah Hussain (PLD 1998 SC 121) is as follows:--

"5. Admittedly, no date of ' Talab-i-Muwathibat' is mentioned in the plaint nor place of acquiring knowledge of transaction is mentioned therein, nor the name of any of the witnesses is given. Admittedly, the transactions pre-empted by the petitioner were distinct and separate but the plaint is silent with regard to making of "Talab-i-Muwathibat' in respect of each transaction. The evidence examined by the petitioner about the time of making ' Talab-i-Muwathibat' and ' Talab-i-Ishhad' is in conflict with the case set up by him in the plaint. In the plaint two "Talabs" are said to have been made on one and the same day, whereas the evidence led by the petitioner showed that "Talab-i-Muwathibat' was made two days prior to ' Talab-i- Ishhad' . The details regarding time and place of ' Talab-i -Muwathibat' is an important fact because the period of limitation for 'Talb-i-Ishhad' is calculated therefrom."

From the above observation it follows that the suit related to two transactions in respect of which different mutations were attested on different dates but the plaint was silent in respect of Talab-e-Muwathibat in respect of each transaction and that the evidence adduced by the petitioner about the time of making Talab-e-Muwathibat and Talab-e-Ishhad was in conflict with the case set up by him in the plaint. It was further found that in the plaint two Talabs were said to have been made on one and the same day whereas the evidence led by the petitioner showed that Talab-e-Muwathibat was made two days prior to Talab-e-Ishhad. In this context it was further observed that the details regarding time and place of Talab-e-Muwathibat is an important factor because of period of limitation for Talab-e-Ishhad is collected therefrom.

In the other case of Shafi Muhammad v. Muhammad Hazar Khan (1996 SCMR 346), suit for pre-emption filed by the petitioner was dismissed on the ground that he had not made the necessary Talabs. Petitioner went in appeal which was dismissed and his revision petition met the same fate when it was dismissed by the High Court. In the cited judgment, reference was made to para.5 of the plaint in that suit where all that the plaintiff had mentioned was as under:--

It was observed that it was obligatory for the petitioner to make Talab-e-Muwathibat, Talab-e-Ishhat and Talab-e-Khusumat and reference was also made to section 13 of the Punjab Pre-emption Act. This Court came to the conclusion that in the case before it the averment made in para.5 of the plaint did not justify the conclusion that the petitioner had made Talab e-Muwathibat or Talab-e-Ishhad as contemplated by law before making Talab-e-Khusumat. In these circumstances the concurrent findings of the three Courts including the High Court were confirmed holding that the petitioner had failed to make the first two Talabs which was sine qua non for pre-empting the sale in question. This case is also distinguishable inasmuch as the concurrent findings of the two Courts including the High Court were not interfered by this Court on the ground that the petitioner/plaintiff had failed to make the first two Talabs.

6. We confirm the view taken earlier by this Court that the pleadings may refer to the material facts but the law does not require the pleadings to contain gist of all the facts and names of witnesses of the plaintiff and that the suit for pre-emption is not an exception to such general principles, which is well established in our jurisprudence.

We are, therefore, unable to endorse the view taken in the impugned judgment of the High Court that the requirements of Talab-e-Muwathibat cannot be fulfilled unless details, particulars, date, time and place are also specifically mentioned in the plaint and the names of the persons in whose presence such Talab is made is also mentioned therein.

In the instant case, plaintiff had specifically referred in the plaint to the two Talabs having been made. The plaintiff could not be non-suited merely on the ground that other details of time and place of the Talabs, and names of witnesses etc. had not been specifically mentioned in the plaint. It may be added that in case defendants/respondents had any difficulty in filing their Written Statement, they could apply to the trial Court for the further and better particulars by filing an appropriate application under Order VI, rule 5 of C.P.C. No such request was made by the respondents and they filed their written statement without taking any plea therein that they had been prejudiced on account of any detail or particular having not been given in the plaint.

7. In the impugned judgment, another reason given for non-suiting the plaintiff is that in the plaint it was not pleaded that any notice under section 13(3) of the Pre-emption Act was ever served by the petitioner. The High Court was of the view that in the absence of such notice and its acknowledgment, the suit of the plaintiff was liable to fail.

In this regard it may be observed that, in the evidence of the plaintiff, copies of notice were produced which were marked but not exhibited. Record, however, shows that no objection had been raised to the production of copies of notices under section 13(3) of the Pre-emption Act sent by the plaintiff to the respondents. The trial Court relied upon the said notice in its judgment and we find that, in their memo. of appeal before the Appellate Court, no ground was taken by the respondents about the admissibility of the copies of such notices or that respondents had not received such notices.

During the proceedings of the appeal filed by the respondents, the Appellate Court allowed additional evidence regarding acknowledgement receipts showing service of the notices upon the respondents. No plea had been taken by the respondents that the notices had not been received by them. From the impugned judgment it appears that, according to the High Court, notices had been allowed to be produced as additional evidence by the Appellate Court. This is not correct. As observed, copies of notices had already been produced in the evidence adduced by the plaintiff about which, no objection had been raised and such notices had been relied upon by the trial Court in its judgment but no grievance was made in their memo. of appeal by the respondents on such admissibility of notices and reliance thereon by the trial Court. Only the acknowledgement receipts were allowed to be produced as additional evidence by the Appellate Court. In the plaint it had been averred that Talabs had been duly made. In the circumstances the High Court erred in holding that the plaintiff had been wrongly allowed to produce evidence about a fact which had not been pleaded in the pleadings.

8. The plaintiff had specifically referred to the making of the Talabs in the plaint. Copies of notice under section 13(3) of the Pre-emption Act had been produced in evidence to which no objection had been raised by the respondents. No plea had been taken in the memo. of appeal that such notices had not been served. There were concurrent findings of the trial Court and the Appellate Court regarding Talabs having been made and notices under section 13(3) of the Pre-emption Act being served upon the respondents which concurrent findings of fact were based on evidence adduced before the trial Court. Such finding and facts were not liable to interference in revisional jurisdiction by the High Court. No case of misappreciation of evidence was made out. There was no material irregularity in the judgment of the Courts below calling for interferece by the High, Court under section 115, C.P.C.

9. As a result this appeal is allowed and the impugned judgment, dated 14-5-1997 of the Lahore High Court is set aside. There shall be no order as to costs.

M.B.A./N-65/S Appeal allowed.