2012 Y L R 2070
[Balochistan]
Before Muhammad Noor Meskanzai, J
Mst. HOORA and another ---Petitioners
Versus
ALLAH DAD ---Respondent
Civil Revision No.183 of 200 9, decided on 15th May, 2012.
Islamic law ---
----Pre-emption ---Talbs ---Sine qua non for enforcement of right of pre -emption ---Contention
of the defendant was that the prerequisites were missing in the plaint and therefore Trial
Court should have reject ed the same under O. VII, R 11 of the C.P.C. ---Validity ---Plaint of
the plaintiff did not qualify the status and standard of a suit required to be filed in pre -
emption cases ---Contention of the plaintiff that the mere use of the word "shifa" was
sufficient and details of Talbs would have been provided by witnesses; lacked legal sanctity
for the reason that evidence beyond pleadings was inadmissible ---Plaintiff was bound to
mention the date, time and presence of witnesses before whom the "Talb -e-Muwathibit" and
"Talb -e-Ishhad" were performed and suit lacking such prerequisites was not maintainable ---
Courts were required to inevitably consider and look at the maintainability and competency
of the suit by examining the contents of the plaint and analyzing the same within the
framework of O.VII, R. 11 of the C.P.C. ---Talbs were sin qua non for enforcement of right
of pre -emption and admittedly the same had not been performed by the plaintiff ---High Court
set aside concurrent findings of the courts below ---Revisio n was allowed ---Civil Procedure
Code (V of 1908), O.VII, R.11.
CLC 2005 Page 1774 ref.
S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hussain Ali Khan (Moin) through
Legal Heirs relevant at page 342) 2002 SCMR 338; Mian Muhammad Sharif Shah and
another v. Rashid Jan Khan and another 1999 SCMR 2496; Bazida through Legal Heirs and
others v. Hussain Bakhsh through Legal Legal Heirs and another 1994 SCMR 1784 and Rozi
Khan v. Karim Shah 1992 SCMR 445 rel.
Sardar Ahmed Haleemi for Petitioners.
Qazi Muhammad Haroon Mengal for Respondent.
Date of hearing: 26th March, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant Revision Petition is directed against the
judgments and decrees dated 26th September, 2008 passed by Qazi Awaran and 31st
March, 2009 passed by the Majlis -e-Shoora Khuzdar, whereby the suit filed by respondent
was decreed and appeal filed by petitioners was dismissed.
2. Facts relevant for disposal of instant revision petition are that the respondent instituted
a suit for c ancellation of mutation and pre -emption against the petitioners in the Court of
Qazi Awaran. It was averred in the plaint the parties own their properties adjacent to each
other. The defendant No.1 sold his property to defendant No. 2 against a considerat ion of
Rs.50,000 despite of the fact that plaintiff asserted his right of pre -emption and expressed his
willingness to purchase the same but all the efforts made by plaintiff borne no fruit, hence the
suit in question was filed.
3. The suit was not conte sted by petitioners/defendants rather all the facts were admitted
in the written statement. The learned Qazi Awaran in view of written statement decreed the
suit vide judgment and decree dated 16th September, 2009. The petitioner feeling aggrieved
of abo ve referred judgment/ decree preferred an appeal before the learned Majlis -e-Shoora
Khuzdar, which too was dismissed. Hence instant revision petition.
4. I have heard Mr. Sardar Ahmed Haleemi Advocate for petitioners whereas Qazi
Muhammad Ha roon Mengal Advocate represented the respondent.
Learned counsel for the petitioner inter alia contended that the trial Court failed to take note
of the fact that power of attorney so placed before the Court could not be treated as a power
of attorney e nabling the attorney to appoint further attorney. The collusive written statement
filed by the so -called attorney, carries no legal weight. It was strenuously urged that the
trial Court and the appellate Court absolutely failed to take into consi deration the so -called
plaint, which could not be treated as plaint, therefore, no proceeding could have been
initiated on the basis of said incompetent suit. It was maintained that plaintiff has filed a
suit for pre -emption and the prere quisites of such suit i.e. the Talbs' are lacking and
missing in the plaint, hence it was the paramount duty of the trial Court to have rejected the
plaint under Order VII Rule 11 sub -clause (d) of C.P.C. By not adopting the course, the trial
Court and t he appellate Court committed irregularity and thus impugned judgments and
decrees passed by both the lower forums are revisable. The learned counsel
emphatically submitted that the appellate Court did not take into account the glaring
illegality committed by the trial Court. Reliance was placed on CLC 2005 Page 1774.
On the other hand, the learned counsel for the respondent vehemently opposed the arguments
so addressed at bar and submitted that the trial Court was option less as the c laim of plaintiff
was admitted in the written statement. The trial Court rightly decreed the suit. As far as the
non-availability of detail and the nature of 'Talab' in the plaint are concerned, this plea lacks
value in view of the fact that the word Shifa ' has been used in the plaint and the details and
nature of Talab' could have been described by the witnesses during their course of
examination. The appeal was not competent before the appellate Court, therefore, the same
was rightly rejected. The learned counsel for respondent made a reference of Order III Rule
4-5(a) of C.P.C., and stated that the agent is quite competent to enter into any sort of
transaction on behalf of principle and on that analogy the written statement was legally
taken into consideration. Learned counsel for the respondent requested for dismissal of
petition.
5. I have considered the contentions so put forth by the learned counsel for the
parties and have gone through the available record of the case with their able
assistance. The perusal of record reflects that suit filed by respondent for pre -emption
was highly defective for the sake of convenience let the relevant portions of the plaint be
reproduced: --
6. A meaningful p erusal of the contents referred to hereinabove leave no room for doubt
that the plaint filed by the plaintiff does not qualify the status and standard of a suit required
to be filed in pre -emption cases. Secondly I have not been impressed by the contention s of
learned counsel for the respondent that the mere word of Shifa in the plaint is sufficient and
the details Talbs would have been provided by the witnesses. The argument is without
substance and absolutely lacks legal sanctity for the simple reason fir stly that the evidence
beyond pleadings is inadmissible. In a pre -emption case, the plaintiff is bound to mention the
date, time and presence of witnesses before whom the 'Talb -e-Mawatubat' and Talb -e-Ishhad'
were performed. Thirdly, a suit lacking such pr erequisites is not maintainable. The Courts are
required to inevitably consider and look at the maintainability and competency of the suit by
examining the contents of plaint and analyzing the same within the framework of Order
VII, Rule 11, C.P.C. In this regard reliance is placed on the judgment reported in 2002
SCMR 338 (S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin)
through Legal Heirs relevant at page 342), wherein it has been held as under: --
"Provisional transfer order does not, ipso facto, confer absolute title over the property.
Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear
title the suit for possession could not be filed. The Government gave the land to the Society
and the latter surrendered it back to the former. The predecessor -in-interest of the petitioners
had no independent right. His right, if any, was through the Society, and it ceased to exist
before it became perfect and enforceable in law. It is the requir ement of law that incompetent
suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial
institution itself. The parties are saved with their time and unnecessary expenses and the
Courts get more time to devote it for the genuine causes. The findings of learned Single
Judge and of Division Bench are based upon material available on record and no legal
infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected."
7. Viewing the case of plaintiff/ respondent with this perspective, unhesitantly, it can be
concluded that the suit for preemption was not competent for lack of the necessary talbs. In a
suit for pre -emption, the talbs being pre requisite and pre -condition for the competency and
maintainability of the suit cannot at all be ignored. As the talbs are sine qua non for
enforcement of right of pre -emption and admittedly the same have not been performed by the
plaintiff, therefore, the suit was not maintainable. By holding the view , I am supported by the
following judgments: --
(A) 1999 SCMR 2496 (Mian Muhammad Sharif Shah and another v. Rashid Jan Khan
and another), wherein it was observed as under: --
"10. There is another circumstance for dismissing the appeal, inasmuch as, the High Court
rightly recorded finding that the appellants have not fulfilled the requirement of Talbs. Refer
the following concluding passage of the impugned judgment: --
"I have found that although the suit has been instituted after the enforcement of the N-W.F.P.
Act No.X of 1987, the pre -emptors have not mentioned anything in the plaint on the demands
of pre -emption as to whether they have made any such demands in the order as stated in
section 13 of the Act aforesaid. There cannot be any dispute that th e pre -emption suit could
not proceed in the absence of such demands even if we absolve them of the liability for which
their suit has been dismissed under section 24(2) of the Act."
Clearly, non -fulfilment of requirement of Talbs would not entitle the ap pellants to a decree
for pre -emption."
(B) 1994 SCMR 1784 (Bazida through Legal Heirs and others v. Hussain Bakhsh through
Legal Heirs and others), wherein it has been held as under: --
"Learned counsel for the petitioner submitted that the petitioner h as a superior right of pre -
emption, therefore, his suit could not be dismissed. The learned counsel has relied upon
Muhammad Sharif v. Muhammad Sharif (1992 SCMR 1129). Now, the final judgment on the
subject has been passed by this Court in Rozi Khan v. Ka rim Shah (1992 SCMR 445) which
has specifically stated that "only those suits which were pending before the commencement
of the new Act, 1987 will not abate where the right of pre -emption is claimed by such pre -
emptors in whom the right of pre -emption vest s under section 6 of the said Act and they have
made a demand of pre -emption (Talb) as required under the provisions of section 13 thereof
section 13 of the Act clearly provides that "the right of pre -emption". The learned counsel
admits that no Talbs had been made by the pre -emptor in the present matter. However, he
submitted that no issue was framed, therefore, the petitioner could not prove that the requisite
Talbs had been made. Talbs are conditions precedent for institution of a suit. The plaint does
not specifically state that any Talb had been made."
(C) 1992 SCMR 445 (Rozi Khan v. Karim Shah), wherefrom relevant observations read
as under:
"However, section 13 of the Act lays down that the right of pre -emption being claimed by a
person will be ex tinguished unless such person makes a demand for pre -emption. This section
is in the following terms: --
"13. Demand of pre -emption. ---(1) The right of pre -emption of a person shall be extinguished
unless such person makes demands of pre -emption in the fo llowing order, namely: --
(a) Talb-e-Muwathibat;
(b) Talb-e-Ishhad, and
(c) Talb-e-Khusumat.
Explanation:
(I) "Talb -e-Muwathibat' means imme -diate 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 of pre -emption.
Note. ---Any words indicative of intention to exercise the right of pre -emption are sufficient.
(II) "Talb -e-ishhad" means demand by establishing evidence.
(III) "Talb -e-Khusumat" means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre -emptor through any
source, he shall make Talb -e-Muwathibat.
(3) Where a pre -emptor has made Talb -e-Muwathibat under sub -section (2), he shall as
soon thereafter as possible b ut not later than two weeks from the date of notice under section
34, or knowledge, whichever may be earlier, make Talb -e-Ishhad by sending a notice in
writing attested by two truthful witnesses, under registered cover acknowledgment due to the
vendee, con firming his intention to exercise the right of pre -emption."
Provided that in areas where due to lack of post office facilities it is not possible for the pre -
emptor to give registered notice, he may make Talb -e-Ishhad in the presence of two truthful
witnesses.
(4) Where a pre -emptor has satisfied the requirements of Talb -e-Muwathibat under
subsection (2) and Talb -e-Ishhad under subsection (3), he shall make Talb -e-Khusumat in the
Court of competent jurisdiction to enforce his right of pre -emption. "
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Thus, the Act of 1987 was adopted to give effect to the Islamic Law of p re-emption, as
explained by this Court in the case of Said Kamal. Herein this Court on the question of
demand of pre -emption (Talbs) observed that the requirement of Talb being a sine qua non
for the enforcement of the right of pre -emption recognised by th e Muslim Law, its non -
compliance had the effect of extinguishing the pre -emptive right of all such pre -emptors.
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------------------------------ -------------------------------- In other words, the demand of pre -
emption is an integral par of the right of pre -emption.
The upshot of this discussion is that only such suits, which were pending before the
commencement of the Act 1987 will not abate whe re the right of pre -emption is claimed by
such pre -emptors in whom the right of pre -emption vests under section 6 of the said Act and
they have made a demand of pre -emption (Talb) as required under the provisions of section
13 thereof. "
8. As far as the objection regarding maintainability of appeal before the appellate Court
and the revision before this Court on the ground of non -availability of power of attorney,
suffice to observe that the appellate Court could have asked the petitioner to file a power of
attorney, if in view of appellate Court, the power of attorney was not available. Secondly the
appellate Court committed material irregularity by drawing an inference that the thumb
impression on the Vakalat -Nama is forged. Without sending the signatur es to the expert or
itself conducting an enquiry, it was not possible to form such an opinion on mere
presumptions. As far as the power of attorney before this Court is concerned, since a power
of attorney is available and even otherwise, upon arriving at the conclusion that the
judgment/decree passed by the trial Court are patently illegal, ab inito void, the High Court
can rightly exercise revisional powers by setting at naught an illegal order passed by illegal
assumption of jurisdiction by an inferior f orum. As far as the admission of claim in written
statement is concerned, it may be observed that there was no legal and valid claim, therefore,
no question of admission. Moreover, the alleged power of attorney does not entitle the so -
called attorney to fi le such a collusive written statement; hence no weight can be given to
such unfounded and baseless written statement.
In the light of above discussion, I am inclined to accept the petition and set aside the
impugned judgment and decree passed by both the courts below with the result, the plaint
filed by respondent is rejected/dismissed under Order VII Rule 11 Sub -clause (d). The parties
to bear their own costs.
K.M.Z./33/Q Petition accepted.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,
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