Liaqat Ali vs Abdul Wadood

2011 C L C 1 3 9

[Peshawar]

Before Yahya Afridi, J

LIAQAT ALI---Petitioner

Versus

ABDUL WADOOD---Respondent

Civil Revision No. 1552 of 2004, decided on 15th October, 2010.

North-West Frontier Province Pre-emption Act ( I of 1987)---

----S. 13---Civil Procedure Code (V of 1908), O. VI, R.5---Pre-emption right---Pleadings--- Talb-i-Muwathibat---Non-mentioning of time and place in plaint---Concurrent findings of fact by two c o ur t s below---Suit and appeal filed by pre-emptor were dismissed by Trial Court and Lower Appellate Court respectively on the ground that he did not mention time and place of Talb-i-Muwathibat in his plaint---Plea raised by pre-emptor was that time and place of Talb-i- Muwathibat was though not mentioned in the plaint but the same was mentioned in notice of Talb-i-Ishhad---Validity---Failing to mention essential particulars about a fact in pleadings would result in depriving that person to prove the same in evidence---No person could go beyond his pleadings---Judgments and decrees passed by two courts below were maintained by High Court---Revision was di s mi s s e d in circumstances.

Sabahuddin v. Mir Ali Jan 2001 SCMR 543; Mst. Gohar Sultan v. Gul Waris Khan PLD 2003 Pesh. 189; Haji Din Muhammad v. Mst. Hajra Bibi PLD 2002 Pesh. 21; Roohul Qadoos v. Muhammad Rafique 2002 CLC 379; Hikmatullah Shah v. Mst. Meera 2000 CLC 336; Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219; Haji Noor Muhammad v. Abdul Ghani 2000 SCMR 329; Khadim Hussain v. Ghulam Eissa 2009 SCMR 488; Mian Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 and Altab Hussain v. Abdul Hamid 2000 SCMR 314 ref.

Fazal Din v. Muhammad Inayat 2007 SCMR 1; Fazal Subhan v. Mst. Sahib Jamal PLD 2005 SC 977 and Haji Muhammad Salim v. Khuda Bukhsh PLD 2003 SC 315 rel.

M. Tariq Javed for Petitioner.

Sher Dil Khan for Respondent.

Date of hearing: 12th October, 2010.

JUDGMENT

YAHYA AFRIDI, J.---Through the instant petition, the petitioner has impugned the judgment and decree dated 22-10-2004 passed by the learned District Judge, Mardan, whereby the appeal of the present petitioner against the judgment and decree dated 13-4- 2004 passed by the Civil Judge, Mardan was dismissed.

2.The brief and essential facts leading to the present revision petition are that a registered deed was executed on 2-9-1998, whereby the present respondent acquired rights in property through sale, which is the subject matter of the present petition. The present petitioner claimed to have first been informed about the said sale on 17-10-1998, when he, in the presence of Mehr Dil and Noorul Haq, declared his intention to seek possession of the sold property through pre-emption and thereby making his first 'Talb'. The petitioner, thereafter, on 24-10-1998 claimed to have made his second 'Talb', whereby he served a registered notice upon the present respondent. The said notice, according to him was witnessed by Mehr Dil and Noorul Haq. Finally, the present petitioner made his final 'Talb', when he on 19-12-1998 instituted the suit for possession exercising his right of pre-emption.

The present respondent vigorously contested the assertions made by the present petitioner. Accordingly, based on the contesting pleadings of the parties, issues are framed and thereafter evidence of the parties were produced.'

The trial Court dismissed the suit of the present petitioner vide judgment and decree dated Being aggrieved thereof, the petitioner impugned the same in appeal. The District Judge, Mardan also dismissed the appeal vide judgment and decree dated 22-10-2004. Hence, the present revision petition.

3.The learned counsel for the petitioner rigorously contended that though the time and place of making the requisite "Talbs" were not stated in the plaint, however, the same was very elaborately explained and stated in the second 'Talb' or the notice, which was annexed with the plaint. The learned counsel elaborated the said point by emphasizing that the reason for mentioning the time, place and witnesses was to ensure that the petitioner does not improve his case at a later stage and. to determine the time period provided for the second and the third `Talb' as provided under section 13 of the N.-W.F.P. Pre-emption Act, 1987 ("Act"). As the particulars of the 'Talbs' were provided in the notice, substantial compliance had been carried out by the petitioner. Accordingly, he urged that this

'misreading' and 'non-reading' led to the illegality committed by the courts below. The learned counsel for the petitioner relied upon Sabahuddin v. Mir Ali Jan (2001 SCMR 543), Mst. Gohar Sultan v. Gul Waris Khan (PLD 2003 Peshawar 189), Haji Din Muhammad v. Mst.Hajra Bibi (PLD 2002 Peshawar 21), Roohul Qadoos v. Muhammad Rafique (2002 CLC 379), Hikmalullah Shah v. Mst.Meera (2000 CLC 336), Dr. Muhammad Ayub Khan v. Haji Noor Muhammad (2002 SCMR 219) and Haji Noor Muhammad v. Abdul Ghani (2000

SCMR 329).

4.The learned counsel for the respondent rebutting the assertions of the learned counsel for the petitioner contended that the express provisions of the Act had been violated hence the suit of the petitioner could not succeed. In this regard the learned counsel elaborated that the law required the pleadings of the parties to be clear, specific and express about the names of the witnesses, the place and time of the 'Talbs'. The learned counsel contended that the petitioner had failed to mention the time and place of the 'Talbs' in the plaint and this fatal omission went to the root of the case and was rightly dismissed by the courts below. The learned counsel further added that the contention of the learned counsel for the petitioner regarding the notice containing all the information regarding the 'Talbs' was also not correct. The learned counsel pointed out that even the second 'Talbs', the notice alleged to have been served upon the respondent was lacking in particulars regarding the place, where the Talbs had taken place. The learned counsel further added that there was no evidence to prove the service of the second 'Talb' upon the present respondent. He explained that no official of the Post Office was produced by the petitioner to prove the service of the second 'Talb'. The learned counsel in support of his submissions relied upon the judgments in Khadim Hussain v. Ghulam Eissa (2009 SCMR 488), Fazal Din v. Muhammad Inayat (2007 SCMR 1), Fazal Subhan v. Mst.Sahib Jamal (PLD 2005 SC 977) and Mian Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302).

5.The valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly perused.

6.The most essential and crucial aspect for resolving 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.

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, ibid. 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 `Talb' as required under section 13 of the Act. Finally, the august Supreme Court of Pakistan stated that;-- "However, we agree and endorse the view in both the judgments that there is no necessity of mentioning the names of the witnesses because then it would be a departure from the

ordinary law of pleading as provided in Order VI, Rule 5, C.P.C. as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the court for the redressal of grievance. Subsequently, therefore, 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 Fazal Din v. Muhammad Inayat (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 by the trial and in the 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 if rebuttal in the written statement."

8.In view of the clear law laid down by the august Supreme Court of Pakistan, the arguments advanced by the learned counsel for the petitioner, though very attractive, cannot be accepted as this court in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 under command to follow the law laid down by the august court.

9.For the reasons stated hereinabove, this court upholds the decisions of the courts below, though on different grounds and reasons. Accordingly, the present petition is dismissed.

No order as to costs.

M.H./336/P Revision dismissed.