MUHAMMAD HANIF vs Mst. MUNAWAR BI alias MUNAWAR NOOR

ORDER

' MAMOON KAZI, J.---Suit filed by the respondent for possession through pre-emption in respect of property bearing Khasra Nos.814, 852 and 951 situated in village Chak Baqar Shah, District Chakwal, was decreed in her favour vide judgment, dated 14-11-1995 passed by the Civil Judge, Second Class Chakwal. The appeal filed by the petitioner before the Additional District Judge, Chakwal succeeded and the said judgment and decree was set aside vide judgment, dated 5-6-1997. The respondent however, filed revision before the High Court which was accepted and the judgment and decree, dated 5-6-1997 passed by the Appellate Court was set aside and the case was remanded to the said Court for decision on other issues in the case.

2. In this petition for leave to appeal before this Court, the main issue raised by the learned counsel for the petitioner relates to Talabs in respect of which Issue No,2 had been framed by the learned Civil Judge as follows:-- "2. Whether the plaintiff has exercised Talabs in accordance with law?"

3. This issue although, was decided by the learned trial Court in favour of the respondent, but on appeal the findings of the trial Court on the said issue were reversed by the Appellate Court as it was held that in a pre-emption suit the plaintiff is bound to disclose particulars in regard to the time, place and date of Talabs. As no such evidence was available and the respondent had also failed to enter into the witness-box herself and instead evidence on her behalf had been led by her attorney, the judgment and decree passed by the learned trial Court in favour of the respondent was set aside. However, as was pointed out earlier, the judgment of the Appellate Court was set aside by the learned Judge in the High Court as he was not impressed by the said findings.

According to the learned Judge, the averments made by the respondent in the plaint clearly indicated that Talabs had been made by her. The learned Judge also did not appear to have been impressed by the other finding given by the learned Appellate Court, as it was held that any obligation which the respondent was required under the law to perform, could also be performed on her behalf by her agent. According to the learned Judge, the respondent being an old and ailing woman could legally be represented in the Court by her attorney who could also give evidence on her behalf. Consequently, the judgment of the Appellate Court was set aside.

4. Before this Court, Ch. Afrasiab, learned counsel for the petitioner, has fully supported the judgment passed in this case by the learned Additional District Judge, Chakwal. Reliance has been placed by him upon two judgments of this Court, the first being given in the case of Shafi Muhammad v. Muhammad Hazar Khan 1996 SCM R 346. In this case, right of pre-emption was purportedly exercised by the plaintiff but, it appears that an averment of general nature was made by the plaintiff that he had asked the respondents to transfer the disputed land to him but the latter refused to do so. Such averment was not found to be sufficient by the learned Civil Judge who dismissed the plaintiff's suit. When the matter ultimately reached this Court, certain observations were made by this Court which, according to the learned counsel, indicate that the plaintiff in a pre-emption suit must name the place where Talb-i-Muwathibat was made by him and must also indicate the manner in which Talb-i-Ishhad had been made and the date on which the same was done. However, these observations nowhere indicate that the plaintiff would be bound to supply such details failing which such suit would fail. In fact, in such case, the plaintiff would only be obliged to meet the requirements of section 13 of the Punjab Pre-emption (Act IX of 1991). The said section only provides that the plaintiff while exercising the right of pre-emption must firstly make demands referred to as (i) Talb-iMuwathibat, (ii) Talab-i-Ishhad and (iii) Talb-i- Khusumat. Talb-i-Muwathibat vide Explanation (I) to section 13 means, 'immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption'. The said Explanation in section 13 further shows that any words indicative of intention to exercise the right of pre-emption would be sufficient.

Nothing can be spelt out from section 13 to indicate that the pre-emptor would be obliged to state the place where Talb-e-Muwathibat was made or the manner in which it was made. No doubt, the pre-emptor would be required to mention the date on which such demand was made but in this regard there appears to be no controversy since, according to the petitioner's case, such demand had been made on 5-8-1994 when the respondent, according to her, for the first time came to know about the sale of the disputed property. Learned counsel for the petitioner has also placed reliance on the case of Amir Jan v. Haji Ghulam Muhammad (PLD 1997 SC 883) wherein it was held that material facts must be proved at the trial although, evidence to be led by the pre-emptor need not be referred to in the plaint. However, reference to this case by Ch. Afrasiab appears to be completely misplaced as the same in no manner lends support to his said contention. The first contention of the learned counsel is, therefore, not tenable.

5. So far as the second contention of the learned counsel is concerned, according to him, it was incumbent on the respondent to herself step into the witness-box and give evidence. The learned counsel has argued that as the respondent led evidence before the learned trial Court through her husband and attorney, presumption should have been drawn against her under clause (g) of Article 129 of the Qanun-e-Shahadat Order, 1984. The said clause provides that:-- "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

6. This contention, in our opinion, also appears to be clearly misplaced. What clause (g) of Article 129 appears to be referring to is evidence and not witnesses. Since in the present case, evidence in respect of the Talab was produced by the respondent although, instead of her, her attorney stepped into the witness-box, reference to Article 129 of the Qanun-e-Shahadat is completely misconceived. As the learned Judge in the High Court has already observed, the petitioner being an old woman was within her right to lead evidence in the Court through her attorney who could lawfully give evidence on her behalf. We, therefore, find no force in the second contention of the learned counsel as well

7. In the result, the petition is dismissed and leave is refused.