Muhammad Aslam Vs Amir Mehmood Kiyani

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(Judicial Department) C.R No. 280-A/2012

Muhammad Aslam .........................(Petitioner) vs Amir Mehmood Kiyani....................(Respondent) Present: Mr. Asadullah Malik, Advocate for the petitioner.

Mr. Mehboob Ahmed, Advocate for the respondent.

Date of hearing: 16.01.2025

JUDGMENT

MUHAMMAD FAHEEM WALI, J.- This order is directed to dispose of this and the connected petition bearing No. 281-A/2012, as both these petitions pertain to the same question of law and are in between the same parties. Similarly, the connected petitions are arising out of the judgments and decrees passed by the Courts below, whereby the plaints in the pre-emption suits of the petitioner, brought against the respondents herein, were rejected by the learned Courts below.

2.Petitioner Muhammad Aslam pre-

empted two different mutations bearing No. 1416 attested on 11.05.2009 and mutation No. 1491 attested on 11.05.2009, by filing two separate suits

of pre-emption. The suit were contested by the respondents by filing their respective written statements. Learned trial Court summarized the pleadings of the parties into issues and afforded opportunity to the parties to lead their evidence.

Meanwhile, the respondents filed separate applications in both the cases, seeking rejection of plaint on the ground that the petitioner/plaintiff has failed to mention the date of issuance of notice Talab-i-Ishhad in the plaint. The application was resisted by the petitioner by filing written reply along with an application for amendment in plaint.

Learned trial court, after hearing arguments of learned counsel for the parties, accepted application of the respondents and rejected the plaints in both the suits, vide order dated 23.11.2010. Feeling aggrieved therefrom, the petitioner approached learned appellate Court by filing separate appeals, which were also dismissed by the learned appellate Court vide impugned separate judgments dated 13.03.2012, hence these connected revision petitions.

3.I have heard arguments of learned counsel for the parties and perused the record.

4.Since the parties in both these revision petitions are same and similar facts and circumstances are involved in all these connected cases, therefore, in order to avoid repetition and for the purpose of brevity, these connected petitions are taken up together for decision through this single judgment.

5.No doubt the right of pre-emption is a feeble right and slight omission in the plaint would be fatal for the plaintiff, because the law of pre-emption is a special statute and once a claim under such law is brought, the plaintiff would be precluded to further add or subtract in his plaint by seeking an amendment, particularly, when such an amendment is aimed at curing some significant omission in the plaint, therefore, the Courts below have rightly refused the petitioner to amend his plaint. Hon’ble Supreme Court of Pakistan, while dealing with a similarly situation in case1 has held that;

“Quite apart from this since a pre- emption case under the latest

Ghulam Yasin and others Vs. Ajab Gul (2013 SCMR 23).

dispensation is more like a criminal case and a plaint in the former is almost like an F.I.R. in the latter, no omission however, fatal it may be, can be allowed to be supplied by means of amendment.

In case it is done by means of amendment, it would open room for additions, after-thoughts and improvements which would go ad infinitum. Neither the pre-emption nor the criminal case with this modus operandi would admit of an end in the mundane existence of the parties. We, therefore, have committed no error much less patent on the face of the record by declining the prayer for amendment of plaint and dismissed the appeal of the petitioner.”

6.So far as rejection of plaint on the ground of non-mentioning the date of issuance of notice Talab- i-Ishhad or non-mentioning the names of witnesses notice Talab-i-Ishhad in the plaint, is concerned, the respondents moved application for rejection of plaint on the ground that the petitioner omitted to mention the date of issuance of notice Talab-i-Ishhad in his plaint, which is incurable defect in the suit and therefore, the plaint is liable to rejection under Order-VII Rule-11 of the Civil Procedure Code, 1908. Learned Courts below

have concurrently acceded to the stance of the respondents by holding that non-mentioning date of issuance of notice Talab-i-Ishhad in the plaint would be fatal for the plaintiff. The Courts below, while rejecting the plaint of the petitioner, have taken guidance from the case law settled by the august Supreme Court of Pakistan in the case of “Mst. Saleem Akhtar vs. Chaduhary Shaukat Ahmed” (2009 SCMR 673), wherein it was held that it was mandatory for the plaintiff in a suit for pre-emption to incorporate in his plaint, the date, time and place of performance of Talab-i-Muwathibat and date of issuing notice of Talab-i-Ishhad in terms of Section 13, Punjab Pre- emption Act, 1991, otherwise, plaintiff’s suit deserved to be dismissed. However, with the passage of time, the law has been further developed and non- mentioning of date of issuance of notice Talab-i-Ishhad in the plaint, was not termed as a fatal omission but with the condition that the plaintiff must annex the copy of notice Talab-i-Ishhad with his plaint. The relevant observations given by the apex Court in the case2 are reproduced below for ready reference;

Daud Shah Vs. Waris Shah (2014 SCMR 852).

“We have heard the learned counsel for the parties and have perused the record. We have noticed that the appellant did mention the dates time and place of making Talab-e-Muwathibat in the plaint, but he did not mention the date of issuance of notice of Talab- e-Ishhad. We, however, have noticed that the appellant has annexed the copies of Notices of Talb-e-Ishhad along with postal and acknowledgment receipts with the plaint. These copies of notices Talb-e-Ishhad containing requisite details along with postal/ acknowledgment receipts were produced and exhibited before the trial Court without any objection from the respondents’ side. The material facts were given in the notices of Talb-e-Ishhad which formed part of the plaint, therefore, omission of the nature in the plaint would not be construed fatal to entail penalty of dismissal of the suit. The omission of the date of notice in the plaint stood cured by annexing the copies of notices of Talb-e-Ishhad along with postal/acknowledgement receipts. The judgments cited by the learned

Counsel for the appellant would not be applicable to the facts of the case in hand.”

7.Order-VII Rule 14 of the Civil Procedure Code, 1908 provides that when a suit is brought on the bases of some document, which is in possession or power of the plaintiff, the same should be presented to the Court along with plaint and when a document is relied as an evidence in support of certain claim, such document should be entered in a list to be added or annexed to the plaint. For ready reference, Order-VII Rule-14 CPC is reproduced hereunder;

“14. Production of document on which plaintiff sues.---(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2)List of other documents.—Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.”

8.The notice of Talab-e-Ishhad is essentially a document, which is relied upon by the plaintiff

during evidence in support of his claim of pre-emption and therefore, annexing its copy with the plaint would be sufficient for the plaintiff, enabling him to rely upon the same in support of his exercise of his right of pre- emption. In the cases under consideration, the plaintiff has mentioned in para-2 of the plaint that;

22.07.2009 "يہ کہ مدعی کو اس بيع کا علم مورخہ بوقت بقدر دو بجے دن بخانہ ام بمقام کوٹلہ تحصيل و ضلع ہری پور بذبانی محمد سليمان ولد خان محمد ساکنہ کوٹلہ تحصيل ہری پور ہوا تو علم ہوتے ہی اسی وقت اور اسی جگہ بموجودگی محمد سليمان اطالع دہنده مذکور فوراً طلب مواثبت اعالن شفع کيا۔ اور اس اعالن /شفع کی روشنی ميں روبرو گواہان مندرجہ نوٹس

بنام مدعا عليہAD نوٹس طلب اشہد بذريعہ رجسٹر

جاری کيا گيا۔ اصل رسيدات ڈاکخانہ و نقل نوٹس لف ٰہذا "ہيں۔ The plaintiff annexed the copy of notice along with his plaint by clearly giving its reference in para-2 of his plaint. Therefore, mere omission to mention the date of issuance of notice of Talab-e-Ishhad, would not be fatal for the plaintiff. Moreover, the respondents have never raised any objection in their written statement that the petitioner has failed to mention the date of issuance of notice Talab-e-Ishhad in his plaint, rather the plea was raised at a belated stage, when the evidence of the parties was being recorded in the case.

The respondents have only denied receipt of any

notice, which fact would require recording of evidence.

In a recent case3, it was settled by the apex Court that;

“In light of the arguments of learned counsel for the appellant, we have noted that though the date of Notice is not mentioned in the plaint but the appellant has never alleged such deficiency in his written statement and has simply denied the performance of Talabs in accordance with law within the stipulated time; no further details whatsoever were given in his written statement. The appellant, while appearing as a witness as DW-1, has repeated the same stance and was not specific with regard to the argument advanced by the learned counsel for the appellant. The evidence led by the respondent clearly establishes the fact that the Notice (Ex.PW-4/ 1), which bears the date of its issuance/execution, was tendered in evidence without any objection by the present appellant. The postman in this regard, who appeared as PW.1, has stated in categorical terms that the said Notice through a registered cover was delivered to the defendant. Besides the above, there is nothing in rebuttal by the present Shan Muhammad alias Shany Vs. Said Mashal (2022 SCMR 1340)

appellant. When confronted as to whether objection with regard to non- mentioning of date of issuance of Notice was raised in his written statement or in his grounds of appeals before the fora below or before this Court, his answer to such query was in negative. The appellant has never ever raised this ground during the trial or in both of his appeals. Learned counsel for the appellant has tried to make out a case which was never pleaded by him earlier and the law does not allow him to make out a new case by raising such a factual plea. We have gone through the entire evidence regarding the performance of Talabs and have found that the entire evidence establishes the fact that both the Talabs were performed by the respondent in accordance with law. It appears that substantial compliance of the statutory provisions has been made by the respondent and no prejudice has been caused to the appellant which is also in accordance with the law laid down by this court in the above referred judgments, and many other judgments on the point. In view of the ample evidence on the record which goes un- rebutted, the respondent cannot be non- suited for a bona fide omission of non- mentioning of the date of notice in the

plaint. Notice was available on the file along with plaint from day one. So, simply non-mentioning the date of issuance of notice cannot be held to non- suit the respondent in the peculiar circumstances of the case. Though in the above judgments it has been held that mentioning the date of issuance of notice in the plaint is must but the same has not been elaborated as to why and what for the mentioning date in the plaint is must. Had in the said cases/judgments, this aspect was clarified then one could have considered the same in the light of peculiar circumstances of the case. As explained above in detail, in presence of entire evidence on the point, mere non-mentioning of date of issuance of notice would not be fatal for pre- emptor. The above judgments in the circumstances are distinguishable and have no bearing on the merits of the case in hand.”

9.Cumulative effect of the aforesaid narration is that the non-mentioning the date of issuance of notice of Talb-e-Ishhad in the plaint would not be fatal, when the copy of the notice has been annexed with the plaint and both the Courts below have wrongly non-suited the petitioner. However,

amendment as sought by the petitioner, was rightly refused by the learned Courts below, in the light of findings rendered in the above paras.

10.Accordingly, this and the connected petition stand partially accepted. The impugned order to the extent of dismissal of application of the petitioner seeking permission to amend his plaint, is upheld, while to the extent of rejection of plaint on the ground of non-mentioning the date of issuance of notice Talb-e-Ishhad in the plaint, the impugned orders passed by the Courts below, stand set-aside and the suits are remanded back to the learned trial Court, to proceed ahead with the same, in accordance with law.

Announced Dt: 16.01.2025

JUDGE

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