IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition calls in question the judgment, dated 5-5- 2006 *passed by the Lahore High Court.
2. Brief facts of the case are that petitioner's predecessor-ininterest has been non-suited on account of non-providing the details i,e, date and time of performance of Talb-i-Muwathibat relying upon the judgment in the case of Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315 and Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCM R 431.
3. Learned counsel contended that in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329 and Hayat Muhammad and others v. Mazhar Hussain 2006 SCM R 1410 it has been ruled that in the pleading there is no necessity for providing the details i,e, date and time for performance of Talb-i-Muwathibat, therefore, the petitioner has been non-suited contrary to these judgments.
4. It may be noted that the judgments which have been relied upon by the learned counsel were considered and with due respect a distinction was pointed out by this Court in the case of Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315 observing that on this aspect of the case the Court was not duly assisted. Relevant paras. From the judgment of Haji Muhammad Saleem (ibid) are reproduced hereinbelow:-- "(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 preemption. The latter 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 SC 360 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 provisions qua Talb-i- Mutathibat or Talb-i-Ishhad. It was on the basis of much 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 pre-emption laws in the country. What we want to emphasise 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 I 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 Hedaya (The Hedaya 1975 Edition, Chapter II, - page 550) which provides. "If the man claims his Shuffa in the presence of the company amongst who 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 preemptor 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-iIshhad which has to be completed within 15 days after the performance of Talb-i-Muwathibat. A pre-emptor 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 that too within a period of 120 days.
(16) It is a settled principle of 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 there from 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-i-Muwathibat is appreciated and at the second instance the limitation qua the performance of Talb-i-Ishhad is calculated. This aspect has never been argued in any case before this Court where the view happens to bc 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 it 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 hereby allowed, 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."
5. The above judgment has again been followed in the case of Akbar Ali (ibid). As far as the judgment in the case of Hayat Muhammad (ibid) relied upon by the learned counsel is concerned, is not helpful in view of the facts and circumstances of the case.
6. These issues were also considered in details by this Court in Subedar Muhammad Nawaz Mst.
Firdaus Begum Civil Appeal No,393 of 2003, decided on 2-2-2006, wherein a Division Bench of this Court had examined almost the entire case-law of this Court relating to the questions involved in this petition including the two judgments delivered by the five Members Bench and had concluded that it was necessary for the pre-emptor to mention the date, time and place of receiving information of sale of the property subject of pre-emption as well as the names of the two witnesses in whose presence the Talb-e-Muwathibat was made. It will be useful to reproduce the relevant portion from the judgment in the above civil appeal as under:--
(11) The above judgment in the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 was followed by a three-member Bench of this Court in the case of Muhammad Siddique v.
Muhammad Sharif and others 2005 SCM R 1231 wherein it was held that a general statement of facts in the plaint relative to the knowledge of transaction of sale was not sufficient compliance of the statutory provisions observing that Talb-eMuwathibat being the first and immediate demand by the preemptor to make a proclamation and pronouncement of exercise of his right of pre- emption was required to be made according to law. This Court in making pronouncements in the afore cited judgments had differed with the contrary view expressed by this Court in a large number of cases which have already been referred to hereinabove including the two cases of Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs 2000 SCM R 314 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329 which were decided by Benches of five Judges. In both these cases it was held that it was not necessary for the pre-emptor to mention all the material facts relating to the date, time and place as well as the names of the persons in whose presence such information was received and Talb-eMuwathibat was made and omission or failure of the pre-emptor to disclose the above fact, he could not be non-suited. It was submitted by Mr. Mehmoodul Islam that the aforesaid judgments being a larger Benches were entitled to be given preference and would prevail upon all the judgments wherein a contrary view had been taken by this Court as all such judgments had been delivered by smaller Benches. There is no dispute relative to the principle that in cases of contrary pronouncements/observations of this Court on a certain issue, the judgment of larger Bench is to be preferred and followed. However, question to be determined is whether the larger Bench of this Court while expressing the view that it was not a mandatory requirement of law to specifically state or mention the date, time and place as well as the names of the persons present when the pre-emptor had received the information of sale of the property in question and made proclamation and intention to purchase the said property had failed to take into consideration the very material fact that the period of limitation for sending notice of Talb-eIshhad and filing of suit would be governed from the date of disclosure of the information and declaration of the intention to purchase the property in question which had to take place in one meeting/Majlis. A perusal of the two judgments of the larger Benches reveal that this question was neither raised nor was considered. In the circumstances it can be said as observed by this Court in the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Akber Ali Khan v. M ainil Shah and others 2005 SCM R 431 that had the question of limitation being raised and brought to the notice of two larger Benches and the Court had been properly assisted/ to answer the question of mentioning of details of the date, time and place of receipt of the information of sale and making of Talb-eMuwathibat the decision of the two larger Benches would have been different.
7. In the said appeal a certain portion of the judgment was also reproduced from the Fazal Subhan v. Sahib Jamala PLD 2005 SC 977 and it will also be beneficial to reproduce the said paras. From the judgment in the case of Fazal Subhan v. Sahib Jamala PLD 2005 SC 977 as it is material and necessary for a correct decision of the questions/ issues involved herein. The relevant portion is as under:-- "This is settled law that pleading of a party is based on the statement of facts given therein which are proved by producing evidence at the trial and in that the names of witnesses and gist of evidence is not required to be given in the plaint or written statement as it is not part of pleadings rather pleading is contained only on material facts. This general principle of law of pleadings is applicable to all suits and no exception can be taken in the suit for pre-emption and consequently, according to the general principle, the performance of Talb-e-Muwathibat and Talb-e-Ishhad must be specifically pleaded in the plaint by giving the date and the place of its making without giving the gist of evidence and the names of witnesses. Talb-e-Muwathibat is the first Talb for exercise of right of pre-emption and without performance of Talb-e-Muwathibat, the performance of Talb-eIshhad is meaningless to maintain the suit. The second Talb is Talb-e-Ishhad which is based on the performance of Talb-eMuwathibat and a pre-emptor who has not been able to prove performance of Talb-e-Muwathibat, cannot succeed in the suit merely on the basis of proving Talb-e-Ishhad and the settled law is that a fact which is not pleaded in the plaint, cannot be allowed to be proved evidence. In the present case, the preemptor in general terms claimed performance of Talb-eMuwathibat in the notice of Talb-e-Ishhad on the basis of information conveyed to him by (P.W.6) without disclosing the place and the date on which he on coming to know about the sale made Talb-e-Muwathibat. The sale took place on 29-1-1990 and notice of Talb-e-Ishhad was given on 15-8-1990 wherein the making of Talb-e-Muwathibat was claimed a week before the issue of notice of Talb-e-Ishhad, therefore, the sole question for determination would be whether requirement of Talb-e-Muwathibat without giving the date, time and place in the plaint along with the names of persons who were present in the Majlis in which the announcement was made for filing the suit for preemption was fulfilled. The disclosure of the fact relating to the performance of Talbs is pure question of fact and in the plaint it would be sufficient to disclose the performance of both Talb-e-Muwathibat and Talb-e-Ishhad to exercise the right of preemption and determination of the ancillary question for the purpose of establishing such right but the performance of Talbs must be proved through the reliable evidence. This Court in Noor Muhammad v. Abdul Ghani 2000 SCM R 329 decided by a Bench comprising of five learned Judges, has held that mentioning of time, date and place or names of witnesses in whose presence Talb- e-Muwathibat was made, was not necessary requirement of law to establish performance of Talb- eMuwathibat whereas in a subsequent case Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 decided by a Bench of three learned Judges, it was held that right of pre-emption was not activated unless Talb-e-Muwathibat was performed specifying the date and time in the pleadings for the reasons that time for performing Talb-e-Ishhad was to be counted from the date of Talb-e- Muwathibat. In another judgment of this Court Muhammad Siddique v. Muhammad Sharif 2005 SCM R 1231, it was reiterated that if the proof regarding date, time and place of making Talb-e- Muwathibat and acquiring knowledge by the plaintiff about the transaction of sale is given in general terms, performance of Talb-e-Muwathibat and Talb-e-Ishhad is not satisfied. The subsequent view taken by the different Benches of this Court on the face of it appears to be in conflict to that of the earlier judgment given by a Bench of five Judges and in the light of rule of propriety the judgment rendered by a larger Bench is given preference but we having perused the judgments, referred above, find that in principle, there was no difference of opinion on the question of law rather the legal position with reference to the peculiar facts of the each case, was discussed in different manner. There can be no cavil to the proposition that each material fact is not required to be given in pleadings and similarly, the names of witnesses or gist of evidence is also not required to be mentioned in the plaint but the basic facts which are considered the foundation of the case of party, must be disclosed in the plaint. This is settled law that a fact which was not disclosed 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 hiscase in rebuttal in the written statement.
In Noor Muhammad v. Abdul Ghani 2000 SCM R 329 the plaintiff pleaded performance of Talb-e- Muwathibat in the plaint without giving time and place of making this Talb and in the subsequent judgment, Talb-eMuwathibat was also pleaded in general terms, therefore, it was observed that without proving Talb-e-Muwathibat which was foundation of the case of pre-emptor right of pre- emption could not be exercised. It is the requirement of law to make Talb-eIshhad within two weeks from the date of making Talb-e-Muwathibat and if making of Talb-i-Muwathibat Talb-e- Muwathibat is not satisfactorily proved the making of Talb-eIshhad within the specified time cannot be proved and in consequence thereto the right of pre-emption is defeated. The principle laid down in the first case referred above, would definitely be applicable to a case in which Talb-e- Muwathibat is made immediately after the sale and Talb-e-Ishhad is made within two weeks from the date of sale. In such a case, only reference of Talb-e-Muwathibat in the notice of Talb-e- Ishhad and in the plaint, would be sufficient but in a case in which the pre-emptor having claimed to acquire the knowledge of sale beyond the date of sale pleaded making of Talb-e- Muwathibat in general terms without specifying date and other necessary particulars Talb-e-Muwathibat, this basic condition for exercising the right of pre-emption would remain unproved. In such situation, it would be essential for the pre-emptor to prove the correct date of knowledge and the place of meeting in which he announced for the exercise of right of preemption. The performance of Talb- e-Ishhad is the second Talb, the fulfillment of which depends upon the presence of Talb-e- Muwathibat and unless the date and place of making Talb-eMuwathibat is specifically mentioned in the plaint or proved through the evidence, the performance of Talb-e-Ishhad cannot be claimed to have been proved in terms of section 13(3) of the ibid Act."
8. For the above facts, reasons and discussion the High Court was justified in placing reliance on the law laid down in the case of Haji Muhammad Saleem and Akbar Ali (ibid). The judgment of the High Court does not suffer from any illegality or infirmity and admits of no interference. The petitioner has rightly been non-suited.