' M. JAVED BUTTAR, J.---This appeal, by leave, is directed against the judgment, dated 9-9-1998 passed by a learned Single Judge of Peshawar High Court, Peshawar whereby Revision Petition No,259 of 1997 instituted by the appellants, was dismissed.
2. The relevant facts are that the appellants/plaintiffs instituted a pre-emption suit in the Civil Court at Takhatbai, District Mardan to preempt the sale effected through Mutation. No,119, dated 16-12- 1992 on the basis of being co-sharers and contiguity etc. It was further asserted that Talb-i- Muwathibat and Talb-i-Ishhad had also been made. The suit was resisted by the defendants/respondents, who also moved application, dated 9-2-1995 for dismissal of the suit on the ground that the particulars of making of necessary, Talbs had not been given in the plaint. The appellants also moved application on 25-6-1995 for amendment of the plaint to be able to give details of the making of Talbs, in the plaint. The trial Court after hearing arguments on both the applications, vide its order, dated 24-9-1995, accepted the respondents' application, dismissed the appellants' application and dismissed the suit with no order as to costs. The appellants' appeal was dismissed by Additional District Judge, Mardan, on 12-1-1997 on the same ground that appellants had not given any details of Talbs in the plaint, which was necessary. The appellants' revision petition (C.R. No,259/1997) under section 115, C.P.C. Was also dismissed on this very ground by a learned Single Judge of Peshawar High Court vide his judgment and decree, dated 9-9- 1998.The appellants assailed the same through the petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, before this Court, wherein the leave was granted to the appellants on 6-4-2000.
3. We have heard the learned counsel for the parties at length on this legal issue.
4. The law now stands settled through a judgment given by this Court in Civil Appeal No,92 of 2000, decided on 9-10-2002, which has been reported as Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315. It has been held that the date and time of making Talb-iMuwathibat is necessary to be mentioned in the pleadings as this Talb puts a limitation on the prospective pre-emptor that he must express his intention to pre-empt immediately and in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or his knowledge, so that the limitation is computed accordingly and secondly for the reason that from the time of making of Talb-i-Muwathibat, the statutory period of 15 days of performance of Talb-i- Ishhad has to be computed. The relevant paragraphs of the above said judgment, for avoiding repetition, are reproduced below:---
(12) Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as a mere technicality 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 pre-emption. The later might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said Kamal Shah's case PLD 1986 SC360 would never have gone to the extent of saying that Talb-i-Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provision qua Talb-i-Muwathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre- emptors in the country were non-suited because of non-assertion and performance of Talb-i- Muwathibat though not required by the then prevailing presumption laws in the country. What we want to emphasize is that Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of pre-emption.
(13) In case of Amir Jan (supra) this Court had, no doubt, suggested that the pleadings should be construed liberally and performance of Talb-i-Muwathibat should not be rejected merely because the details thereof had not been furnished in the plaint yet it is apparent that the Court was not properly assisted to answer the point that the details of Talb-i-Muwathibat were important with reference to time and place because therefrom the limitation for Talb-i-Ishhad is calculated. It is but obvious and apparent that all the three kinds of Talbs, one way or the other, are related to some phenomenon of limitation.
(14) According to section 13, Explanation 1 of N.-W.F.P. Preemption Act, 1987, Talb-i-Muwathibat means "immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption" the words "immediate demand" put a limitation on the prospective pre-emptor that he must express his intention immediately. This has also been interpreted as jumping demand but the immediacy can well be gathered from Hydaya The Hydaya 1975 Edition, Chapter II, page 550) which provides, "If the man claims his Shuffa 'in the presence of the company amongst whom he may be sitting when he receives the intelligence, he is the "Shafee", his right not being invalidated unless he delays asserting it till after the company have broken up".
(15) This is a clear indication of compulsion on the prospective pre-emptor that he has to. Make Talb-i-Muwathibat in between the period of his having received the information in the Majlis and the dispersal of the Majlis. Beyond such limitation, the Talb if exercised would be invalid. The second step is that of Talb-i-Ishhad which has to be completed within 15 days after the performance of Talb-i-Muwathibat. A preemptor can be 'non-suited for non-performance of Talb-i-Ishhad as well and the performance of the latter is to be linked with. The performance of the former. The third one is Talb-i-Khusumat which is the filing of a pre-emption suit and too within a period of 120 days.
(16). It is a settled law that in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the plaintiff in specific so that the limitation is computed accordingly. It has never been made permissible in the realm of civil law that a plaintiff who does not disclose-the point of time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same. In our view it is important to tell the date and time of the performance of Talb-i-Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb-i-Muwathibat in the same meeting and before the dispersal thereof.
(17) The date and time is important to be mentioned in the pleadings because therefrom the performance of Talb-i-Ishhad has to be computed so as to be within 15 days. As mentioned earlier, in civil cases in general the point of time qua the accrual of knowledge requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The cases of preemption' should not be an exception to the general law and the day and time of performance of Talb-I- Muwathibat which is simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings so that, at the first instance the immediacy of the Talb-i-Muwathibat is appreciated and at the second instance the limitation. Qua the performance of Talb-iIshhad is calculated. This aspect has never been argued in any case before this Court where the view happens to be expressed to the contrary. Conceding, of course, that the material constituting evidence may or may not be mentioned in the pleadings.
(18) A similar question had arisen before this Court in case of Altaf Hussain v. Abdul Hameed alias Abdul Majeed 2000 SCM R 314, where if was held that a plaintiff could not be non-suited on the ground that day, time and place when and where the plaintiff learnt .About the sale transaction were not specifically pleaded in the plaint. We have gone carefully through the above ruling and have observed that the question of limitation concerning Talb-i-Muwathibat, Talb-i-Ishhad and Talb-iKhusumat were never argued before the Court as discussed by us in the instant judgment.
Had the factum of limitation concerning these Talbs been argued before this Court in case of Altaf Hussain (supra), the decision would certainly have been altogether different.
(19) Consequent upon what has been discussed above the instant petition having been converted into appeal is herebyallowed, the judgment and decree, dated 11-10-1999 of Peshawar High court is set aside and by restoring the concurrent finding of the Courts below, Khuda Bakhsh pre-emptor/ respondent is non-suited."
(20)
4. The above view has been reaffirmed and followed by this Court in its judgment passed in C.P No,442-P/2002, on 12-2-2004, wherein following the above principle, the petition was converted into an appeal, the impugned judgment was set aside and the pre-emptors were non-suited.
5. The reliance of the learned counsel for the appellants on Haji Noor Muhammad through his legal heirs v. Abdul Ghani and 2 others 2000 SCM R 329 which finds mentioned in the leave granting order as well, is also not helpful to the appellants. The view expressed in this judgment is the similar view which was expressed in Altaf Hussain v. Abdul Hameed alias Abdul Majeed (supra), which was considered by this Court in Haji Muhammad Saleem v. Khuda Bakhsh (supra) and in paragraph 18 of the said judgment, reproduced above, the same was distinguished. We are therefore, of the view that Haji Noor Muhammad through legal heirs v. Abdul Ghani and 2 others (supra) is also distinguishable for the same reasons.
6. Therefore, in our opinion, the details of making Talb-i-Muwathibat having not been given or suppressed in the plaint, the preemptors had failed to prove the performance of said Talb. The Courts below had correctly dismissed the appellants' suit and the High Court had correctly refused to interfere in the exercise of its revisional jurisdiction. Accordingly, we find no merit in this appeal which is dismissed with no order as to costs.