Javed Akhtar etc vs Muhammad Israr

2011 C L C 1339

[Peshawar]

Before Yahya Afridi, J

JAVED AKHTAR and 6 others----Petitioners

Versus

MUHAMMAD ISRAR----Respondent

Civil Revision No.1107 of 2004, decided on 11th April, 2011.

(a)North-West Frontier Province Pre-emption Act (X of 1987)--- ----S. 13---Suit for pre-emption---Making of talbs---Suit was concurrently dismissed by the Trial Court and lower Appellate Court on the ground that 'talbs' provided under S.13 of North-West Frontier Province Pre-emption Act, 1987 were not performed in accordance with law---Plaint had revealed that same lacked particulars regarding the time, place and witnesses of 'Talb-i-Muwathibat'---Mentioning of time, date and place of the first 'talb' was a sine qua non of proving the 'talbs' as required under S.13 of North-West Frontier Province Pre-emption Act, 1987---Non-mentioning of particulars regarding date, time and place etc. being fatal, suit was rightly dismissed by the courts below.

Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302; Haji Noor Muhammad v. Abdul Ghani 2000 SCMR 329; Altab Hussain v. Abdul Hameed 2000 SCMR 314; Haji Muhammad Salim v. Khuda Bukhsh PLD 2003 SC 315 and Fazal Subhan v. Mst. Sahib Jamala PLD 2005 SC 977 ref.

(b)Civil Procedure Code (V of 1908)---

----O. VI, R.1---Pleadings---Failing to mention essential particulars about a fact in the pleadings, would surely result in depriving the said person to prove the same in evidence--- Person could not go behind his pleadings.

Fazal Din v. Muhammad lnayat 2007 SCMR 1 and Fazal Subhan v. Sahib Jamala PLD 2005 SC 977 ref.

M. Jamil for Petitioners.

M. Alam and M. Fakhre Alam for Respondent.

Date of hearing: 11th April, 2011.

JUDGMENT

YAHYA AFRIDI, J.--- This revision petition is directed against the judgment and decree passed by the learned Additional District Judge-II, Mardan dated 7-7-2004, whereby the appeal of the present petitioner was dismissed and the judgment and decree dated 26-1-2004 passed by the Civil Judge, Mardan was maintained.

2.The brief and essential facts leading to the present petition are that the present petitioner instituted a suit for possession exercising his right of pre-emption, in respect of a shop situated at Sarfaraz Ganj Bazar, Mardan, ("shop"), which was purchased by the present respondent. The present respondent contested the claim of the petitioners and based on the disputed pleadings of the parties, the trial Court framed seventeen issues. Thereafter, the parties produced their evidence. Finally, the trial Court based on the evidence produced by the parties dismissed the suit of the present petitioners essentially on the ground that the 'Talbs' provided under section 13 of the N.-W.F.P. Pre-emption Act, 1987 ("Act") were not performed in accordance with law. Aggrieved thereof, the present petitioners impugned the same in appeal, which was also dismissed essentially on the ground that the petitioners were unable to prove the 'Talbs' in accordance with the provisions of the Act. Hence, the present petition.

3.On reviewing the plaint, it clearly reveals that the same lacks any particulars regarding the time, place and witnesses of 'Talb-e-Muwathibat' as is essential under section 13 of the Act.

4.Thus at the outset, this Court confronted the learned counsel for the petitioner to explain the effect of not describing the 'Talb-e-.Muwathibat' with particulars in the plaint. The learned counsel for the petitioner argued that admittedly, the particulars of 'Talb-e- Muwathibat' were not stated in the plaint, however, the petitioner had been explained the same during the evidence produced by the petitioner. This he asserted was 'substantial compliance' of section 13 of the Act.

5.The most pivotal issue in the present case is to determine, whether non-mentioning of date and time of making the first `talb' in the plaint was fatal or otherwise under section 13 of the Act.

6.This issue has been a matter of discussion in various judgments of the august Supreme Court of Pakistan. The matter was finally settled by the august Supreme Court of Pakistan, while rendering its judgment in Mian Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302). This judgment of a Bench consisting of five Hon'ble Judges of the Supreme Court has put to rest this controversy regarding the mentioning of time, date and place in the plaint and the consequences of its omission. The august Supreme Court of Pakistan discussed the previous judgments of the august Supreme Court rendered in Haji Noor Muhammad v. Abdul Ghani (2000 SCMR 329) and Altab Hussain v. Abdul Hamid (2000 SCMR 314), wherein the consensus was that it was not necessary to give particulars of the first 'Talb' including the date, place and time of performance of the same. The august Supreme Court of Pakistan, thereafter, descended with the law laid down in the aforementioned judgments and approved the later annunciation of the Supreme Court in the judgments rendered in Haji Muhammad, Salim v. Khuda Bukhsh (PLD 2003 SC 315) and Fazal Subhan v. Mst. Sahib Jamala (PLD 2005 SC 977), wherein it was clearly held that the mentioning of time, date and place of the first `talb' was a sin qua non of proving the `talbs' as required under Section 13 of the Act. Finally, the august Supreme Court of Pakistan stated that; "..... we endorse the view taken in the judgments and approved that a plaint wherein date, place and time of `Talb-e-Muwathibat' and date of issuing the notice of performance of `Talb-I-Ishhad' in terms of notice 13 of the Act is not provided it would be fatal for the pre-emption suit".

7.Moreover, it would also be important to note that failing to mention essential particulars about a fact in the pleadings would surely result in depriving the said person to prove the same in evidence. It is a settled principle of law that a person cannot go beyond his pleadings. This aspect of the case has also been dilated by the august Supreme Court in Fnzal Din v. Muhammad lnayat (2007 SCMR 1), wherein approving the law laid down in Fazal Subhan v. Sahib Jamala (PLD 2005 SC 977), it held that;

"this is settled law that pleading of the parties is based on the statement of facts given therein which are proved by producing evidence at the trial and in that names of the witnesses and list of witnesses is not required to be given in the plaint or written statement as it is not part of the pleadings rather pleading is contained only on material facts ....... This is settled law that the fact which is closed in the pleadings cannot be subsequently allowed to be proved and thus if a party wants to prove a particular fact which was not pleaded cannot be permitted to lead evidence on such fact for the reason that second party could not set up his case in rebuttal in the written statement."

8.Accordingly, for the reasons stated hereinabove, the present petition being devoid of merit is thus, dismissed.

No order as to costs.

H.B.T./186/P Petition dismissed.