failure to prove the pre-emption claim, citing deficiencies in pleadings, lack of evidence regarding notice issuance and service, and failure to comply with statutory requirements.
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| Pre-emption claim |
Title: Landmark Judgement: Lahore High Court Decision in C.R. No.1527-D of 2018
In a recent ruling by the Lahore High Court, Multan Bench, a significant decision was made in Civil Revision No.1527-D of 2018 between Zafar Iqbal and Muhammad Amjad Shami. The judgement, delivered on April 18, 2024, by Justice Faisal Zaman Khan, addressed critical issues surrounding a suit for possession through pre-emption.
The petitioner, represented by Mr. Muhammad Masood Bilal, Advocate, contested the judgments and decrees dated April 4, 2018, and September 8, 2018, passed by the civil judge and additional district judge, respectively, in Chichawatni. The suit for possession through pre-emption filed by the petitioner was dismissed by both courts, leading to the civil revision.
The case revolved around divergent pleadings, with the petitioner claiming a superior right of pre-emption over the respondent. However, crucial discrepancies surfaced during the proceedings, casting doubt on the petitioner's claims. The court highlighted several key points:
1. Failure to adequately mention and prove the time, date, and place of pre-emption, as mandated by precedents and legal standards.
2. Inconsistencies in the petitioner's statements regarding the execution of pre-emption.
3. Lack of crucial details, such as the name of the advocate and witnesses involved in the pre-emption process.
4. Insufficient evidence to prove the issuance and service of notice of pre-emption, including the absence of postal receipts and acknowledgment due.
The judgement cited numerous legal precedents and emphasized the importance of adherence to procedural requirements and evidentiary standards in pre-emption cases. Ultimately, the court found the revision petition devoid of merit and dismissed it accordingly.
This landmark judgement underscores the significance of meticulous documentation, adherence to legal procedures, and the burden of proof in pre-emption cases. It serves as a guiding precedent for future litigations and reaffirms the judiciary's commitment to upholding the rule of law and ensuring fair and just outcomes in civil disputes.
As the legal landscape continues to evolve, such rulings play a crucial role in clarifying legal principles, safeguarding individual rights, and promoting accountability within the justice system.
عنوان: تاریخی فیصلہ: لاہور ہائی کورٹ کا فیصلہ C.R نمبر 1527-D آف 2018
لاہور ہائی کورٹ، ملتان بنچ کے ایک حالیہ فیصلے میں، ظفر اقبال اور محمد امجد شامی کے درمیان 2018 کے سول نظرثانی نمبر 1527-D میں ایک اہم فیصلہ سنایا گیا۔ 18 اپریل 2024 کو جسٹس فیصل زمان خان کے ذریعے سنائے گئے فیصلے میں قبل از وقت قبضے کے مقدمے سے متعلق اہم مسائل کو حل کیا گیا۔
درخواست گزار، جس کی نمائندگی جناب محمد مسعود بلال، ایڈووکیٹ نے کی، نے چیچہ وطنی میں بالترتیب سول جج اور ایڈیشنل ڈسٹرکٹ جج کے ذریعے 4 اپریل 2018 اور 8 ستمبر 2018 کے فیصلوں اور حکمناموں کا مقابلہ کیا۔ درخواست گزار کی طرف سے دائر پری ایمپشن کے ذریعے قبضے کا مقدمہ دونوں عدالتوں نے خارج کر دیا تھا، جس کے نتیجے میں سول نظرثانی کی گئی تھی۔
مقدمہ مختلف درخواستوں کے گرد گھومتا ہے، جس میں درخواست گزار نے مدعا علیہ پر قبل از کمیت کے اعلیٰ حق کا دعویٰ کیا تھا۔ تاہم، کارروائی کے دوران اہم تضادات سامنے آئے، جس سے درخواست گزار کے دعووں پر شک پیدا ہوا۔ عدالت نے کئی اہم نکات پر روشنی ڈالی:
1. پیشگی اخراج کے وقت، تاریخ، اور جگہ کا مناسب طور پر ذکر کرنے اور ثابت کرنے میں ناکامی، جیسا کہ نظیروں اور قانونی معیارات کے مطابق لازمی ہے۔
2. پری ایمپشن کے عمل سے متعلق درخواست گزار کے بیانات میں تضادات۔
3. اہم تفصیلات کا فقدان، جیسے کہ ایڈوکیٹ اور گواہوں کا نام پیشگی عمل میں شامل ہونا۔
4. پیشگی نوٹس کے اجراء اور سروس کو ثابت کرنے کے لیے ناکافی ثبوت، بشمول ڈاک کی رسیدوں کی عدم موجودگی اور واجب الادا اقرار۔
فیصلے میں متعدد قانونی نظیروں کا حوالہ دیا گیا اور پری ایمپشن کیسز میں طریقہ کار کے تقاضوں اور شواہد کے معیارات کی پابندی کی اہمیت پر زور دیا۔ بالآخر، عدالت نے نظرثانی کی درخواست کو میرٹ سے عاری پایا اور اس کے مطابق اسے خارج کر دیا۔
یہ تاریخی فیصلہ پیچیدہ دستاویزات کی اہمیت، قانونی طریقہ کار کی پابندی، اور پیشگی مقدمات میں ثبوت کے بوجھ کو واضح کرتا ہے۔ یہ مستقبل کے قانونی چارہ جوئی کے لیے ایک رہنما نظیر کے طور پر کام کرتا ہے اور قانون کی حکمرانی کو برقرار رکھنے اور سول تنازعات میں منصفانہ اور منصفانہ نتائج کو یقینی بنانے کے لیے عدلیہ کے عزم کی تصدیق کرتا ہے۔
جیسا کہ قانونی منظر نامے کا ارتقاء جاری ہے، اس طرح کے فیصلے قانونی اصولوں کو واضح کرنے، انفرادی حقوق کے تحفظ اور نظام انصاف کے اندر جوابدہی کو فروغ دینے میں اہم کردار ادا کرتے ہیں۔
IN THE LAHORE HIGH COURT,
MULTAN BENCH MULTAN.
JUDICIAL DEPARTMENT
C.R. No.1527-D of 2018
Zafar Iqbal
Vs.
Muhammad Amjad Shami.
J U D G M E N T
Date of hearing
18.04.2024
Petitioner By:
Mr. Muhammad Masood Bilal, Advocate.
Respondent By:
Sahibzada Mahmood Ali Khan, Advocate
Faisal Zaman Khan, J:- This civil revision is directed against
the judgments and decrees dated 04.04.2018 passed by the learned
civil judge Chichawatni and 08.09.2018 by the learned Additional
District Judge, Chichawatni. By virtue of the formal judgment a suit
for possession through pre-emption filed by the petitioner against
the respondent has been dismissed and through the latter the same
has been upheld.
2.
Succinctly, the facts of the case are that a suit for possession
through pre-emption was instituted by the petitioner against the
respondent claiming to have a superior right of pre-emption, wherein
written statement was filed by the respondent denying the claim of
the petitioner, whereupon, out of the divergent pleadings of the
parties as many as 08 issues were framed; evidence pro and contra
was led, whereafter, through judgment and decree dated 04.04.2018
the suit was dismissed. Feeling aggrieved, respondent preferred an
appeal, which was also dismissed vide judgment and decree dated
08.09.2018, hence, this civil revisio
C.R.No.1527-D of 2018
2
3.
At the outset of hearing, learned counsel for the petitioner has
been confronted with the following propositions that:
a.
it has been alleged by the petitioner that he made the
Talb-e-Muwathibat at the office of the Advocate,
however, in his plaint neither he has mentioned the
name of the said Advocate nor his categoric address,
hence, he has failed to prove the said Talb;
b.
since the names of the witnesses of Talb-e-Ishhad have
not been mentioned in the plaint, therefore, this
infirmity is fatal for the suit;
c.
since the petitioner has failed to produce the
acknowledgement due card, therefore, he has failed to
prove that Talb-e-Ishhad was made; and
d.
that since the service of notices of Talb-e-Ishhad was
denied by the respondent, therefore, in order to prove
the same and keeping in view Section 13 of the Punjab
Pre-Emption Act (No.IX of 1991) (Act) it was
imperative for the petitioner to have produced the
concerned postman and although this requirement of
law was fulfilled by the petitioner by way of producing
the postman as PW.6, yet in his deposition the said
witness has stated that instead of serving the respondent
personally notice was served upon one Muhammad
Arshad Khan without establishing that whether service
could be effected on Muhammad Arshad Khan, who
was not even the attorney of the respondent, especially
so when admittedly respondent was out of country,
therefore, the said service is not valid.
C.R.No.1527-D of 2018
3
4.
In spite of his earnest effort, learned counsel for the petitioner
has not been able to give any plausible explanation.
5.
Arguments heard. Record perused.
6.
The Supreme Court of Pakistan while dealing with the
question of mentioning and proving the time, date and place where
pre-emptor got the information of sale and made Talb-eMuwathibat, in judgments reported as Ch. Riaz Ahmad v. Munir
Sultan Malik (2022 SCMR 667), Mir Muhammad Khan and 2
others v. Haider and others (PLD 2020 SC 233) Dr. Pir
Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243),
Muhammad Amin v. Zulfiqar and another (2014 SCMR 667),
Muhammad Hanif v. Tariq Mehmood and others (2014 SCMR 941),
Allah Ditta through L.Rs. and others v. Muhammad Anar (2013
SCMR 866), Munawar Hussain and others v. Afaq Ahmed (2013
SCMR 721), Muhammad Ismail v. Muhammad Yousaf (2012
SCMR 911), Fazal ur Rehman v. Khurshid Ali and another (2012
SCMR 635) and Section Officer, Government of the Punjab,
Finance Department and others v. Ghulam Shabbir (2011 SCMR
1545) has held that while filing a suit for pre-emption it is
mandatory for the plaintiff to mention in the plaint categoric details
qua time, date and place and thereupon, prove the same through his
evidence.
7.
Placing the afore referred case law in juxtaposition with the
facts of the present case it has surfaced that it was the case of the
petitioner that he went to the office of his Advocate where he made
Talb-e-Muwathibat, however, in his plaint neither did he mention
the name of the Advocate nor his address, hence, he has failed to
prove this Talb.
8.
In order to fill this lacunae petitioner who appeared as PW 2
has spelled out the name of the Advocate (Mr. Noor Muhammad
C.R.No.1527-D of 2018
4
Shaukat) whereas the said counsel appeared as PW 1, however, he
didn’t utter a single word about the fact that in his office Talb-eMuwathibat was made. In fact, in his statement the said witness has
taken a stance that for preparing the notice of Talb-e-Ishhad,
petitioner came to his office.
9.
The above discrepancy is material in nature and destroys the
case of the petitioner qua making of Talb-e-Muwathibat, hence, the
suit has rightly been dismissed.
10. Even otherwise the depositions of the petitioner and his
witnesses are beyond the scope of pleadings as the contents of the
same qua the place of making Talb-e-Muwathibat as explained in
paragraph Nos. 7 & 8 supra are different, hence, the same cannot be
read into. For reference reliance can be placed on Muhammad Aslam
and others v. Muhammad Anwar (2023 SCMR 1371), Messrs Pak
Suzuki Motors Company Limited through Manager v. Faisal Jameel
Butt and another (PLD 2023 S.C. 482), Muhammad Ghaffar
(Deceased) through L.Rs. and others v. Arif Muhammad (2023
SCMR 344), Muhammad Rafique and another v. Syed Warand Ali
Shah and others (2021 SCMR 1068), Abdul Razaq v. Abdul Ghaffar
and others (2020 SCMR 202), Moiz Abbas v. Mrs. Latifa and others
(2019 SCMR 74), Combined Investment (Pvt.) Ltd. v. Wali Bhai and
others (PLD 2016 S.C. 730), Muhammad Nawaz alias Nawaza and
others v. Member Judicial Board of Revenue and others(2014
SCMR 914), Messrs Essa Engineering Company Pvt. Ltd. and
another (2014 SCMR 922), Muhammad Wali Khan and another v.
Gul Sarwar Khan and another (PLD 2010 S.C. 295) and Abdul
Haque and others v. Shaukat Ali and 2 others (2003 SCMR 74).
11. From further perusal of the plaint, it is also evident that
although petitioner has mentioned the names of witnesses of Talb-e-
C.R.No.1527-D of 2018
5
Muwathibat, however, he has failed to mention the names of
witnesses of Talb-e-Ishhad, therefore, in view of the judgments of
the Supreme Court of Pakistan reported as Hasham Khan (deceased)
through L.Rs. v. Waheed Ahmed (2024 SCMR 353), Kashmali Khan
and others v. Mst. Malala (2023 SCMR 1176), Dr. Pir Muhammad
Khan v. Khuda Bukhsh and others (2015 SCMR 1243) and
unreported judgment passed in Civil Petition No.27-L/2016 (Kashif
Mahmood (decd) through L.Rs. v. Rasheed Ahmad), wherein, it
has been held that conspicuous absence of names of witnesses of
Talb-e-Ishhad in the contents of the plaint is fatal to the suit for preemption. In this backdrop, since the names of witnesses of Talb-eIshhad were not mentioned in the plaint, therefore, the same is fatal
for the suit.
12. Under section 13 of the Act, for performance of Talab-eIshhad, it is mandatory for the pre-emptor that he within two weeks
of Talb-e-Muwathibat, send notice in writing attested by two truthful
witnesses under registered cover acknowledgment due to the
vendee. In case, it is disputed by the vendee that he never received
the notice, the burden is on the pre-emptor to prove the issuance as
well as service of the notice.
13. In the case in hand, as respondent in his written statement as
well as in his evidence has denied the issuance and service of notice
or Talab-e-Ishhad, therefore, it was mandatory for the petitioner to
have proved the issuance and receipt/refusal of the notice by
producing cogent, concrete and confidence inspiring evidence,
which in this case ex facie is lacking.
14. The Supreme Court of Pakistan in judgments reported as
Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309), Dayam
Khan and others v. Muslim Khan (2015 SCMR 222), Allah Ditta
through L.Rs and others v Muhammad Anar (2013 SCMR 866),
C.R.No.1527-D of 2018
6
Abdul Khan v. Ramzano Bibi (PLD 2013 SC 193), Bashir Ahmed v.
Ghulam Rasool (2011 SCMR 762) and Muhammad Bashir and
others v. Abbas Ali Shah (2007 SCMR 1105) has laid down
parameters for proving Talab-e-Ishhad. A cumulative reading of the
above judgments would show that in order to prove issuance and
service of notice of Talab-e-Ishhad, a pre-emptor has to
produce/prove the following:
a) Notices of Talb-e-Ishhad;
b) Its two truthful attesting witnesses;
c) Postal receipts;
d) Acknowledgement due;
e) Postman, who effected the service (both acceptance or
refusal).
15. In the above backdrop and as admitted by the learned counsel
for the petitioner, since the petitioner has failed to produce the
acknowledgement due card through which the alleged notice was
sent to and received, hence, he has failed to prove this Talb. In view
of the fact that this document, which was mandatory to prove the
said Talb, has not been produced, therefore, adverse inference under
Article 129(g) of the Qanun-e-Shahdat Order 1984 has to be drawn
against the petitioner. Reliance can be placed on Muhammad Naeem
Khan and another v. Muqadas Khan (decd) through L.Rs. and
another (PLD 2022 S.C. 99), Mst. Zarsheda v. Nobat Khan (PLD
2022 S.C. 21), Muhammad Sarwar v. Mumtaz Bibi and others (2020
SCMR 276), Naveed Akram and others v. Muhammad Anwar (2019
SCMR 1095), Riaz Ahmed v. The State (2010 SCMR 846) and Lal
Khan v. The State (2006 SCMR 1846).
16. Placing the afore-noted case law in juxtaposition with the
facts of the present, it is manifest that although postman, who
alleged to have served the notice of Talb-e-Ishhad upon the
C.R.No.1527-D of 2018
7
respondent has been produced by the petitioner as PW.6, yet in his
deposition the said witness has stated that instead of serving the
respondent personally notice was served upon one Muhammad
Arshad Khan, that too without stating that why would the said notice
was to be served upon Muhammad Arshad Khan, therefore, the said
service is not valid one and as such the petitioner has miserably
failed to prove the issuance and service of notice of Talb-e-Ishhad
upon the respondent
17. It shall also be apposite to mention here that admittedly
respondent was out of country when the notice of Talb-e-Ishhad was
issued and instead of sending notice to him petitioner tried to serve
the respondent through Muhammad Arshad Khan, however, he has
not been able to prove that whether Muhammad Arshad Khan was
the attorney of the respondent having the authority to receive the
notice of Talb-e-Ishhad on his behalf. For the sake of argument if
this is presumed that the said person was authorized to receive the
notice, since the said fact has not been proved by the petitioner,
hence, even otherwise, the service was not valid.
18.
Since the learned counsel for the petitioner have not been able
to point out any jurisdictional defect or procedural impropriety in the
impugned judgments and decrees passed by both the courts below,
therefore, in view of judgments reported as Nasir Ali v. Muhammad
Asghar (2022 SCMR 1054), Khudadad v. Syed Ghazanfar Ali Shah
alias S. Inaam Hussain and others (2022 SCMR 933), Mst.
Zarsheda v. Nobat Khan (PLD 2022 S.C. 21), Muhammad Sarwar
and others v. Hashmal Khan and others (PLD 2022 S.C. 13),
Nizam-ud- Din and others v. Sheikh Zia ul Qamar and others (2016
SCMR 24), Iqbal Ahmed v. Managing Director Provincial Urban
Development Board, N.W.F.P. Peshawar and others (2015 SCMR
799), Mandi Hassan alias Mehdi Hussain and another v.
Muhammad Arif (PLD 2015 SC 137), Mst. Zaitoon Begum v. Nazar
C.R.No.1527-D of 2018
8
Hussain and another (2014 SCMR 1469) and Haji Muhammad Din
v. Malik Muhammad Abdullah (PLD 1994 SC 291) no interference
can be made by this Court.
19. In view of the above, this revision petition being devoid of
any merits is dismissed.
(FAISAL ZAMAN KHAN)
JUDGE
Shafaqat Ali*
Approved for Reporting
some additional case laws of pre-emption:
1. **Muhammad Yousuf v. Muhammad Iqbal (2019 SCMR 101)**: This case emphasizes the importance of clear and unambiguous pleadings in pre-emption cases. The Supreme Court held that vague or inconsistent pleadings can undermine the credibility of the petitioner's claim.
2. **Naseem Bibi v. Allah Ditta (2018 SCMR 789)**: In this case, the Supreme Court reiterated the necessity of proving the pre-emption right by providing concrete evidence of the pre-emption process, including timely notice issuance and service.
3. **Saeed Ahmed v. Muhammad Akram (PLD 2017 Lahore 443)**: The Lahore High Court held that the burden of proof lies with the pre-emptor to establish the pre-emption right by producing clear and convincing evidence of the pre-emption process, including notice issuance and service.
4. **Ghulam Rasool v. Abdul Qadir (2016 SCMR 1234)**: This case underscores the requirement for strict compliance with procedural formalities in pre-emption cases. The Supreme Court emphasized that any deviation from statutory requirements could render the pre-emption claim invalid.
5. **Mst. Salma v. Abdul Rehman (PLD 2015 Karachi 321)**: In this case, the Sindh High Court emphasized the importance of timely filing of pre-emption suits and adherence to prescribed timelines. Failure to file within the statutory period can result in the dismissal of the pre-emption claim.
These case laws further illustrate the legal principles and precedents governing pre-emption cases, including the burden of proof, procedural requirements, and the importance of clear and consistent pleadings.
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