Form No.

HCJD/C-121
ORDER SHEET
LAHORE HIGH COURT, RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Civil Revision No.678/2010

Iffat Begum etc. Versus Robina Shaheen

S.No. of Date of order/ Order with signature of Judge and that of parties or counsel where necessary
Order/ proceeding
Proceeding

07.11.2013 Nameo for the petitioners.

Mr. Abdul Rasheed Awan, Advocate for the respondent.

Brief facts giving rise to this revision petition are

that the respondent/plaintiff Rubina Shaheen had filed a
suit for possession through pre-emption regarding the suit
property which is fully mentioned in the plaint. The
respondent/plaintiff pre-empted the sale in favour of the
petitioners/defendants regarding the suit property
affected vide mutation No.4732 dated 28.4.2004 against
a consideration of Rs.45,000/-. It is further alleged in the
plaint that in fact petitioners/defendants had purchased
the suit property against a consideration of Rs.30,000/-,
but to deprive the plaintiff/respondent from exercising
her lawful right, an exorbitant amount of Rs.45,000/- as
sale price was got entered in the said mutation. It is
further narrated in the plaint that sale had been kept
secrete from the plaintiff/respondent, who came to know
about the same on 6.5.2004 at 6.00 p.m. through her
husband Shaukat Ali at her house and immediately she
announced the intention to exercise her right of pre-
emption in presence of Shaukat Ali and Muhammad Arif.
It is also alleged in the plaint that the plaintiff-respondent
had performed Talabl-e-Ishhad by sending notice to the
defendants-petitioners through registered post.
Final 7.11.2013 C.R. 678-D of 2010 2

2. The suit was contested by the petitioners/defendants by filing

their written statement. The petitioners/defendants alleged that neither

the Talab-e-Muwathibat had been performed by the

plaintiff/respondent nor any notice of Talab-e-Ishhad was delivered to

them.

3. The factual area of dispute is reflected in the issues framed by

learned trial court and for brevity sake only pivotal issue No.5 is

reproduced here-under:-

“Whether the plaintiff has fulfilled the requiste Talabs in

accordance with law? OPP”

4. The learned trial court after recording evidence of the parties

dismissed the suit vide the judgment and decree dated 13.4.2010. The

respondent/plaintiff filed an appeal, which was heard by Mr. Abul

Hasnat Muhammad Zulqarnain, Addl. District Judge, Chakwal, who

vide the judgment and decree dated 10.6.2010 accepted the appeal and

decreed the suit filed by the respondent/plaintiff. Feeling dissatisfied,

with the latter judgment and decree, the petitioners/defendants have

come up with the instant revision petition before this court.

5. Today on call of the case, no one has appeared on behalf of the

petitioners/defendants, whereas, Mr. Abdul Rashid Awan, Advocate,

learned counsel for the respondent-plaintiff has addressed his

arguments and supported the impugned judgment and decree dated

10.6.2010. He has argued that performance of Talabs is merely a

technical affair and the basic requirement of law is whether the pre-

emptor has superior right or not. He has further argued that the right
Final 7.11.2013 C.R. 678-D of 2010 3

of pre-emption has been determined in favour of the

plaintiff/respondent by both the learned courts below.

6. With the assistance of the learned counsel for the respondent-

plaintiff, the record of the suit has been perused. The relevant
paragraph No.2 of the plaint filed by the respondent-plaintiff
regarding the performance of Talabs for ready reference is reproduced
hereunder:-

7. On the other hand the petitioners/defendants had denied the

alleged factum of performance of Talab-e-Muwathibat and Talab-e-

Ishhad in para No.2 of their written statement. The onus of issue No.5

was on the respondent/plaintiff and to discharge the said onus, the she

produced Muhammad Arif as PW1. It is important to note that

Muhammad Arif PW1 is the person in whose presence Talab-e-

Muwathibat and Talab-e-Ishhad had been performed as alleged by the

plaintiff in para No.2 of the plaint. The whole statement of

Muhammad Arif (PW1) is of significant nature which is reproduced

here:-
Final 7.11.2013 C.R. 678-D of 2010 4

10. A perusal of the testimony of PW1 as reproduced above shows

that PW1 did not utter a single word regarding the performance of
Talab-e-Muwathibat by the respondents/plaintiffs. Furthermore, the
said witness also showed his ignorance that any jumping demand had
been performed or not by the plaintiff-respondent. He further stated
that he was not aware where the said notice had been got scribed.
Even alleged notice of Talab-e-Ishhad was not got exhibited in the
statement of PW1 nor the plaintiff/respondent got declared the said
witness hostile. The respondent/plaintiff is bound by the statement of
her own witness. In the light of said statement of PW1, the
performance of Talab-e-Muwathibat and Talab-e-Ishhad cannot
declare to have been proved. The performance of Talabl-e-
Muwathibat is not a mere technicality viz-a-viz the superior right of
pre-emption. The law is now clear that the very right of the pre-
emption is not activated unless Talab-e-Muwathibat is performed. It
should not be dubbed as a mere technicality, but at times it acquires
such dimension that it becomes more important than the superior right
because it essentially is a sine qua non of the right of the pre-emption.
The same is the verdict of the Hon’ble Supreme Court of Pakistan
which has been rendered in a case reported as “Fazal Din through
L.Rs. Vs. Muhammad Inayat through L.Rs” (2007 SCMR 1). The
learned lower appellate court wrongly declared that performance of
Talab-e-Muwathibat had been proved by the plaintiff/respondent by
adducing cogent evidence. The evidence available on record has been
viewed and it is clear that plaintiff/petitioner had failed to perform
Talab-e-Muwathibat in accordance with law. If the contradictions
appearing on the surface of record in the statements of PWs are
ignored, even then statement of PW1 Muhammad Arif is sufficient to
dislodge the findings of the learned lower appellate court to the extent
of performance of Talab-e-Muwathibat by the plaintiff-respondent.
 Final 7.11.2013 C.R. 678-D of 2010 5

11. The averments of the plaint and the testimony of PWs produced
by the plaintiff/respondent are also silent about the delivery of alleged
notice of Talab-e-Ishhad to the petitioners/defendants or they had ever
received the same. The plaintiff-respondent also failed to produce
registry booking Clerk of the concerned Post Office and relevant
Postman to prove the dispatch of notice Talab-e-Ishhad by the
plaintiff-respondent and its delivery to the petitioners-defendants. To
my mind, in order to succeed in the suit for pre-emption, it was
imperative for the plaintiff to produce evidence including the Postman
to prove that in fact notice had been served upon the petitioners-
defendants. The respondent/plaintiff failed to perform the said job,
which is fatal to her claim. The reliance can be placed on “2013
SCMR 866”, “2013 YLR 2016” and “2007 SCMR 1105”.
11. In the above perspective, it is found that the respondent’s
appeal was allowed in complete oblivion of the record of the case and
the impugned judgment passed by the learned lower appellate court
dated 10.6.2010 cannot sustain in the eyes of law, which is set aside
by allowing this Civil Revision Petition and the suit filed by the
respondent-plaintiff is dismissed with costs and the judgment and
decree dated 13.4.2010 passed by learned trial court is restored.

(CH. MUHAMMAD MASOOD JAHANGIR)

JUDGE

Approved for Reporting.

Judge
*A.H.Qamar*