2016 C L C 1465
[Balochistan]
Before Jamal Khan Mandokhail and Shakeel Ahmad Baloch, JJ
ABDULLAH JAN and another ----Appellants
Versus
BIBI ALMAS BANO and 8 others ----Respondents
Regular First Appeal No.34 of 2009, decided on 22nd February, 2016.
(a) Islamic law ---
----Pre-emption ---Suit for possession through pre -emption ---Oral evidence produced by the
plaintiffs did not give description of their property and property in question ---Plaintiffs had
failed to establish their entitlement to claim the property in dispute through right of pre -emption -
--Plaintiffs had not mentioned the exact date and time when they came to know about the factum
of sale nor was there any mention of the date and time of performance of Talb -i-Muwathibat ---
Exact dat e and time of performance of Talb -i-Muwathibat must be clearly mentioned in the
plaint which would be subject to confirmation by the witnesses ---Talb-i-Muwathibat was not
performed promptly and properly in the present case ---Nothing was on record that plai ntiffs had
made a reference of Talb -i-Muwathibat before performance of Talb -i-lshhad which was a
condition precedent ---Trial Court should have considered such aspect of the case instead of
decreeing the suit ex parte ---Suit was decreed without properly app reciating the evidence by
Trial Court which was an illegality ---Impugned judgment and decree were not sustainable and
set aside ---Suit was dismissed.
Section 231 of the Mohammadan Law ref.
(b) Civil Procedure Code (V of 1908) ---
----O. V, R. 20 ---Substituted service ---Requirements ---Ex parte decree, setting aside of ---Non-
service of defendant due to incomplete and wrong address ---Substituted service ---Application for
setting aside ex parte decree was dismissed by the Trial Court ---Contention of appli cants -
defendants was that they were not served due to incomplete address ---Validity ---Plaintiffs were
bound to provide complete address of the parties i.e. plaintiff and defendant in the plaint ---Proper
address of the defendants was not mentioned in the pl aint nor plaintiffs pointed out the
whereabouts of the defendants to the Process Server ---Defendants were not served due to
negligence of plaintiffs ---Trial Court instead of compelling the plaintiffs to provide proper
address of the defendants ordered subs tituted service ---Substituted service could only be adopted
when all efforts to effect service upon the defendants in ordinary course were made but failed ---
No report or statement of Process Server was on record to the effect that defendants were either
avoiding service of summons upon them, or they could not be found for any reason ---Non-
service of defendants was due to incomplete and wrong address given by the plaintiffs ---Trial
Court had failed to follow the procedure provided by law before ordering subs tituted service ---
Trial Court before making order for publication of notice in press did not order affixation of a
copy of summons at some conspicuous part of the house or place of business of defendants ---
Proper procedure for substituted service had not b een adopted by the Trial Court, in
circumstances ---Appeal was allowed.
Haji Akbar v. Gul Baran 1996 SCMR 1703; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed
Khan 2001 SCMR 99 and Messer AXLEPRODUCTS Limited v. Messer Allied Bank of
Pakistan Ltd. 2011 SCMR 1469 ref.
(c) Pre -epmption ---
----Talb-i-Muwathibat ---Meaning.
(d) Pre -epmption ---
----Talb-i-Ishhad ---Meaning.
Muhammad Akram Shah for Appellants.
Muhammad Usman Yousafzai for Respondents.
Date of hearing: 30th November, 2015.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --- The respondents Nos.1 to 3 filed a suit for
possession through right of pre -emption, on 26th June, 2003 in the Court of the Civil Judge -I,
Quetta against the appellant and the respondents Nos. 4 to 9. The trial Court dismis sed the suit
under Order XVII, Rule 3, C.P.C. by means of the judgment and decree dated 12th August,
2004. The respondents Nos.1 to 3 filed an appeal bearing RFA No.38 of 2004 before this Court,
which was allowed by means of the judgment dated 27th October , 2007, and the case was
remanded to the trial Court, subject to cost of Rs.3000/ - to be paid by the respondents Nos.1, 2
and 3. Upon remand of the case, the trial Court issued notices to the appellants and respondents
Nos.4 to 8, but the same could not be served upon them due to the incomplete addresses. The
trial Court on 2nd August 2008 directed the respondents Nos.1 to 3 for submission of fresh
addresses, but the needful was not done. The trial Court then directed the respondents Nos.1 to 3
to publish n otice in the daily newspaper "Jung Quetta" on 8th September 2008, but the order was
not complied with. After four dates of hearing, the respondents Nos.1 to 3 were again directed to
publish notice in the daily newspaper "Baakhabar", which they did, however on 26th December,
2008, the appellants and the respondents Nos.4 to 9 did not appear, hence they were proceeded
against ex parte. The respondents Nos.1 to 3 were directed to produce their evidence, which they
did on 17th February, 2009. The trial Court af ter hearing the respondents Nos.1 to 3 decreed the
suit by means of the judgment and decree dated 18th February, 2009. According to the learned
counsel for the appellants, an application under Order IX, Rule 13, C.P.C. was filed on 21st May,
2009 before th e executing Court, which was not entertained, hence this appeal was filed on 22nd
May, 2009 along with an application under section 5 of the Limitation Act for condonation of the
delay supported by an affidavit.
2. Learned counsel for the appellant state d that after remand of the case, the appellant was
not served due to incomplete address. According to him, the trial Court on 2nd August, 2008,
directed the respondents Nos.1 to 3 to provide fresh addressed of appellant and respondents
Nos.4 to 8, but desp ite availing opportunities, the needful was not done. Thereafter, the trial
Court directed them to publish notice in a daily newspaper Jung Quetta, but the direction of the
trial Court was not complied, however the trial Court once again directed them to p ublish a
notice in another newspaper, i.e. Daily Baakhabar, which they did. The learned counsel added
that since this newspaper unpopular, therefore, is not widely circulated, as such, the appellants
remained unserved. The learned counsel added that even o therwise, before making an order for
publication in the newspaper, the trial Court was bound to ask the respondents Nos.1 to 3 to
provide proper address of the appellants and upon doing so, the trial Court could have adopted
the procedure provided by Order V, C.P.C., but the procedure provided by the law has not been
adopted, as such, the appellants were unaware about the date of announcement of the judgment
and decree impugned. He stated that the moment the appellants came to know about the
judgment and de cree impugned on 21st May, 2009, they immediately applied for certified
copies, which they obtained on the same day, therefore, from the date of knowledge of the
impugned judgment and decree, the appeal is within time. The learned counsel stated that if th e
time is calculated, the difference is only of two days, which can be condoned by the Court in
view of the stated facts. On merits as well, the learned counsel added that the respondents Nos.1
to 3 are neither qualified to claim the right of pre -emption n or have claimed their alleged right in
accordance with law, as such, were not entitled for the relief claimed for. He stated that it is a
settled principle of law that the trial Court should consider the evidence and thereafter, to decide
the case strictly in accordance with law, irrespective of the fact that the defendant is proceeded
against ex parte. He stated that the ex -parte order does not automatically result into decreeing the
suit, rather it is the responsibility of the plaintiff to prove his/their suit. According to the learned
counsel, in the present case though the appellants and the other defendants were proceeded
against ex -parte, but the respondents Nos.1 to 3/plaintiff have failed to prove their case,
therefore, the suit was required to be di smissed, but the trial Court by mis -appreciation of the
evidence wrongly decreed the same, which is an illegality. The learned counsel stated that even
otherwise this Court earlier remanded the case conditionally, subject to payment of Rs.3000/ -,
but the o rder sheets of the trial Court reflect that the respondents 1 to 3 did not deposit the
amount, therefore, unless the needful is done, the suit cannot be proceeded and instead it should
have been dismissed under Order XVII, Rule 3, C.P.C., but the trial Cou rt has failed to do so,
which is also an illegality.
3. Learned counsel for the respondents Nos.1 to 3 opposed the contention and stated that the
appellants were avoiding service of notice deliberately, therefore, a substituted service was
ordered by the trial court. He stated that publication of the notice in the newspaper shall be
effectual as if it has been made on the appellants/defendants personally. He stated that after such
publication, the appellants have no excuse to deny the same, therefore, upo n their non -
appearance, they were rightly proceeded against ex -parte by the trial Court. The learned counsel
stated that in such view of the matter, they cannot claim benefit of section 5 of the Limitation
Act, therefore, the appeal is barred by time. He s tated that the respondents Nos.1 to 3 have
produced evidence in their support and have succeeded in establishing their claim. The learned
counsel added that the respondents have asserted their right of pre -emption in accordance with
law in presence of the witnesses, who categorically confirmed the contents of the plaint and also
supported the statement of the attorney, as such, the trial Court has rightly decreed the suit.
4. We have heard the learned counsel and have gone through the record. The first po int for
consideration in this appeal is whether the service was properly effected upon the appellants and
the respondents Nos.4 to 8? We have gone through the record of the trial Court and have also
perused the notices issued to the appellants and the resp ondents Nos.4 to 8. The order sheet dated
2nd August, 2008 of the trial Court reflect that the notices issued could not be served upon the
appellants due to improper address. On such a report, the trial Court directed the respondents
Nos.1 to 3 to provide fresh addresses of the appellants and the respondents Nos.1 to 8 with
further direction to serve the notices upon them on pointation, but neither fresh addresses of the
appellants were pointed out nor the abode of the appellants was pointed out to the Proc ess
Server. According to Order VI, Rule 3, C.P.C., it is the responsibility of the plaintiff to construct
the plaint in accordance with appendix A, which makes it mandatory upon the plaint to provide
complete address of the parties, i.e. plaintiff and defe ndant in the plaint. Admittedly, the proper
address of the appellants/defendants was not mentioned in the plaint, nor the respondents Nos.1
to 3 pointed out the whereabouts of the appellants to the Process Server. Under such
circumstances, it is proved tha t the appellants were not served due to the negligence of the
respondents Nos.1 to 3.
5. The trial Court instead of compelling the plaintiffs to provide proper address of the
appellants and the respondents Nos.4 to 8, ordered service of the appellants th rough substituted
service by exercising power under Order XX, Rule 5, C.P.C. which is reproduced herein -below:
"5. Court to state its decision on each issue. --- In suits in which issues have been
framed, the Court shall state its finding of decision, with the reasons therefor, upon each
separate issue, unless the finding upon any one or more of the issues is sufficient for the
decision of the suit."
Sub-rule (1 ) of Rule 20 supra clearly says that "where the court is satisfied that there is reason to
believe that the defendant is keeping out of the way for the purpose of avoiding service or that
for any other reason, the summons cannot be served in an ordinary wa y". This provision of law
empowers the Court to adopt procedure of substituted service, only when all efforts to effect the
service upon the defendants in the ordinary course are made, but failed. Admittedly there was no
report or statement of the Process Server to show that the appellants/defendants were either
avoiding service of summons upon them or could not be found for any reason. Since non -service
of the appellants was due to an incomplete and wrong address given by the respondents Nos.1 to
3/plainti ffs, therefore, it cannot be said that appellants/defendants were keeping out of the way
for the purpose of avoiding service, or that they could not be found for any reason. It seems that
the trial Court has failed to follow the procedure provided by law b efore ordering substituted
service, hence committed an error.
6. Even otherwise, the trial Court before making order for publication of notice in press, did
not order affixation of a copy of summons at some conspicuous part of the house or place of
busin ess of the appellants. If such procedure was adopted, the appellants could have been served.
Thus, the given facts lead us to the conclusion that even proper procedure as provided by Rule 20
of Order V of the C.P.C. has also not been adopted by the trial C ourt, therefore, the publication
of notice in the daily newspaper Baakhabar cannot be considered as effectual service of notice
upon the appellants/defendants. In this behalf, reliance has been placed on the cases of Haji
Akbar v. Gul Baran, Mrs. Nargis La tif v. Mrs. Feroz Afaq Ahmed Khan and Messer
AXLEPRODUCTS Limited v. Messer Allied Bank of Pakistan Ltd., reported in (1996 SCMR
1703), (2001 SCMR 99) and (2011 SCMR 1469), respectively. It is therefore established that the
appellants and the respondents N os.1 to 8 were unaware about the announcement of the
impugned judgment and decree. Even otherwise, the reason mentioned in the application for the
condonation of delay are plausible, hence the application is accepted and the delay of two days in
filing of the appeal is hereby condoned.
7. On merits, the claim of the respondents Nos.1 to 3/plaintiffs is for possession of the land
in dispute through right of pre -emption. In Balochistan, the right of pre -emption is governed by
Section 231 of the Mohammadan l aw, wherein a co -sharer, a participator in amenities and in
appendages and owner of adjoining immovable property is entitled for such right. Section 236 of
the law prescribes the procedure for performance of demands of right of pre -emption as under:
"No person is entitled to the right of Pre -emption unless --
(1) He has declared his intention to assert the right immediately on receiving
information of the same. This formality is called Talb -i-Mowasibat (literally, demand of
jumping that is, immediate dem and); and unless
(2) He has with the least practicable delay affirmed the intention, referring expressly
to the fact that the Talb -i-Mowasibat had already been made (a), and has made formal
demand --
(a) either in the presence of the buyer, or the selle r, or on the premises which are the
subject of sale (b), and
(b) in the presence at least of two witnesses (c). This formality is called Talb -i-Ishhad
(demand with invocation of witnesses)(d)."
Perusal of the contents of the plaint and the evidence pro duced by the respondents Nos.1 to 3
before the trial Court would reveal that the witnesses have simply stated that the land of the
respondents Nos.1 to 3 is situated adjacent to the land in dispute. In this behalf, no documentary
evidence has been produced before the trial Court to show that the respondents Nos.1 to 3 are the
adjoining owners of the property in dispute. The oral evidence produced by the respondents
Nos.1 to 3 does not give any description of the property of the respondents Nos.1 to 3 and th e
property in question. By simply saying that the land of the respondents Nos.1 to 3 is adjacent to
the land in dispute is not enough to establish their entitlement to claim the property in dispute
through right of pre -emption. The respondents Nos.1 to 3 h ave failed to establish his entitlement
regarding right of pre -emption.
8. Besides, the performance of demand for the right of pre -emption is hyper technical. It is
necessary for the person who is claiming such right to establish that the demands have be en
performed in a manner provided by Section 236 of the Mohammadan Law. In this behalf, the
pre-emptor must declare his/her intention to assert the right, immediately on receiving
information about the sale of a property. It is literally called as Jumping Demand, which is
known as Talb -e-Mawasibat. Thereafter, the pre -emptor has to perform his second demand either
in presence of the buyer or the seller or at the premises which is the subject of sale, in presence
of at least two witnesses, which is called Ta lb-e-Ishhad. It is important to mention here that
before performing the second demand, the pre -emptor must give reference of claiming of the
first demand to the witnesses, informing them that he/she has already performed his/her first
demand accordingly. S uch reference is a condition precedent, without which, Talb -e-Ishhad is
incomplete. Hence the formalities for performance of demands must be strictly observed.
9. In the plaint, the respondents Nos.1 to 3 stated that few days ago, when they came to
know through one Nabi Gull that the respondents Nos.4 to 8 have sold out the disputed property
to the appellants, they in presence of their witnesses, performed Talb -i-Mawasibat. It is further
contended that thereafter they went to the disputed property and cla imed Talb -i-Ishhad in
presence of the said witnesses. To the contrary, PW -2 Nabi Gull, the other witness and the
attorney for respondents Nos.1 to 3 in their statements before the Court, stated that the plaintiffs
when came to know about the sale transacti on, he along with the witnesses immediately went to
the land in dispute, wherein he installed a nail therein and turned his face towards Kabba and
thereafter demanded his right of pre -emption. The respondents Nos.1 to 3 and their witnesses did
not mention the exact date and time when they came to know about the factum of sale nor is
there any mention of the date and time of performance of Talb -i-Mawasibat. The law says that
"Talb -i-Mawasibat should be made as soon as the fact of the sale is known to the cla imant",
therefore, the exact date and time of the performance of said demand must be clearly mentioned
in the plaint, which is of course subject to confirmation by the witnesses. The statements of
witnesses would show that the respondents Nos.1 to 3 instea d of claiming their first demand of
Talb-i-Mawasibat immediately upon receiving the information of sale, went to the land in
dispute. Be that as it may, it is evident that at the first instance on coming to know about the sale
transaction, no demand was ma de, rather the first demand was made at the land in dispute, which
must have taken a considerable time, as such, it was not performed promptly and properly.
10. As far as the second demand allegedly made by the respondents Nos.1 to 3 is concerned,
their attorney and their witnesses have clearly stated that the previous owner/seller (Akhtar
Muhammad), then was approached by the respondents Nos.1 to 3 and claimed their right of pre -
emption before him. In the statements of the witnesses and the statement of the attorney, there is
nothing to prove that the respondents Nos.1 to 3 have made a reference of performance of first
demand, i.e. Talb -e-Mawasibat before performance of second demand, i.e. Talb -e-Ishhad. Since
reference of first demand before performance of second demand is a condition precedent,
therefore, its non -performance is fatal. Such a legal aspect of the case was to be considered by
the trial Court, instead of decreeing the suit mechanically due to ex -parte proceedings. It is a
settled principle o f law that the plaintiffs must confirm his/her pleadings through witnesses. A
plaintiff can only succeed on the strength of his/her own case and not upon the weaknesses of the
defendants. The respondents Nos.1 to 3/plaintiffs have not been able to succeed in their case, but
without properly appreciating the evidence, the trial Court decreed the suit, which act amounts to
mis-appreciation of the evidence, which is an illegality, therefore, the judgment and decree
impugned are not sustainable.
Thus, the ap peal is allowed. The impugned judgment and decree dated 18th September
2009 passed by Senior Civil Judge -I, Quetta is set aside. The suit filed by the appellants is
dismissed. The office is directed to prepare the decree sheet, accordingly.
These are th e reasons of our short order dated 30th November, 2015.
ZC/25/Bal. Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.