' GHULAM MOHYUDDIN MALIK, J.--- The pre-emption suit brought by Muhammad Sarwar (respondent) was contested by Waris Khan petitioner/vendee. The learned trial Court after recording pro and contra evidence in respect of disputed points between the parties, dismissed the suit vide judgment, dated 18-11-2002 under the issues of estoppel and waiver of right of pre- emption.
2. On appeal, the Appellate Court, allowed the appeal and decreed the suit of the pre-emptor vide judgment, dated 20-7-2004 holding that evidence on record was too scanty to believe that the pre-emptor had in any manner waived of his right of pre-emption and was estopped by his conduct to pre-empt the sale transaction.
3. Feeling aggrieved by the above said judgment of the Appellate Court, the petitioner has filed this revision petition.
4. I have heard the arguments of the learned counsel for the parties and have perused the record.
5. Learned counsel for the petitioner argued the case mainly on two-fold grounds, namely, that in the original plaint date, time and place of information and making of Talb-i-Muwathibat was not disclosed, secondly, that the respondent has waived of his right of pre-emption, therefore, he was estopped by conduct to file the pre-emption suit against the petitioner.
6. On the other hand, learned counsel representing the respondent submitted that no question whatsoever respecting waiver was specifically pleaded in the written statement nor was put to plaintiff or his witnesses in cross-examination. With regard to non-mentioning of date and time of making Talb-i-Muwathibat in the plaint he submitted that there was submitted an application for making amendment in the plaint which application was allowed by the learned trial Court on payment of cost and accordingly amended plaint was filed which was never objected to by the petitioner rather he had received the cost, imposed on permitting amendment in the plaint, therefore, he is precluded to raise this objection at a later stage of hearing revision petition.
7. It is undoubtedly a settled law that a pre-emptor is bound to mention the date and time of making Talb-i-Muwathibat in the plaint as there from the period prescribed for Talb-i-Ishhad has to be counted, therefore, non-mentioning of such facts in the plaint is considered fatal to the exercise of right of pre-emption. The date and time of making Talb-i-Muwathibat is the basic foundation or first step upon which structure of pre-emption suit is to be built up. The case-law cited at the bar by the petitioner's counsel shows its importance and necessary for exercise of right of pre-emption. He relied upon 2008 SCMR page 404, 2007 SCMR page 1086, 515 and 302.
8. But in the instant case the facts are a little bit distinguishable. The omission of mentioning date, time and place of making Talb-iMuwathibat in the plaint was rectified on acceptance of application for amendment in the plaint by the learned trial Court on payment of cost which order was never challenged before the next higher forum, so much so, that the cost imposed on the pre-emptor for submission of amended plaint was received by the petitioner. So by his conduct he is prevented by legal rule to re-agitate the same issue before High Court in revision. He and his counsel had thorough knowledge, understanding and experience or study of law about the consequences of receiving the cost in civil cases which operates as a complete bar to his defence due to his own fault. This question also came up before worthy Supreme Court of Pakistan in a case reported in 1971 SCMR page 185, where they made the following observations:--- "Civil Procedure Code (V of 1908), S.115 & 0.VI, R.17--- Amendment of plaint---Amendment allowed by trial Court on payment of cost---Party moving revision before High Court but pending revision accepting cost in Court below---Held: High Court justified, in circumstances, to dismiss revision petition."
9. There is yet another case reported in 2003 MLD page 1983 wherein it was observed that where issue decided against a party have not been challenged by filing appeal or cross-objection within prescribed period of limitation, it amounts to admission of decision. In PLD 1973 SC page 295 the Honourable Judge of the apex Court made the following observations on the subject:-- "(a) Civil Procedure Code (V of 1908), 0.XLI, R.22---Respondent in appeal can support a decree even on points against him but cannot attack decree and ask for its variation without filing cross- objection."
10. On these facts it can fairly be concluded that respondents have managed to achieve a complete cure to the problem of non-mentioning of C date and time in the plaint by filing amended plaint under the permission and order of learned trial Court.
11. The next question which falls for discussion is whether the preemptor has waived of his right of pre-emption and by conduct he was estopped to file the pre-emption suit.
12. According to the allegations, the pre-emptor had declined to purchase the suit property and further that he was present at the time of attestation of sale mutation in Jalsa-Aam.
13. According to dictionary meaning the "waiver" means to surrender claim or to give something voluntarily.' In this case evidence is that the pre-emptor was reluctant to purchase the land offered to him by the vendor but on record no confidence-inspiring evidence exists to believe that he had voluntarily surrendered, specially right of preemption in favour of vendee. There is no evidence as to action of preemptor indicating an intention to waive the right of pre-emption in favour of petitioner saying, "I forego my right of pre-emption in favour of vendee". Likewise, evidence is lacking that the sale was effected with pre-emptor's advice, consent and in his presence through him the vendor had collected sale consideration suggesting that he had no longer any D desire to pre-empt the sale. It means the evidence does not prove or purport or operate to extinguish right of pre-emptor in the disputed property. So in this view of the matter, I am of the considered opinion that the right of pre-emption exists in favour of respondent to secure the benefit of his own property without molestation from undesirable neighbour, he is not estopped from asserting his right of pre-emption against the petitioner who as per the record is a stranger. Actually it would require very strong and cogent reasons that would compel the Court to apply principle of waiver and estoppel in a suit for pre-emption that the sale was effected with pre-emptors' advice, consent or for that matter he provided money to the vendee for payment to the vendor or he effected bargain between the vendee and vendor or that at any stage of the transaction he had assured the vendee that he would not pre-empt the transaction. Similarly evidence is lacking in the instant case, that the sale mutation was attested in favour of petitioner through the efforts or active assistance of respondent or that he helped the petitioner in any manner in delivery of possession of the property sold. These could be a few examples amounting to waiver of right of pre-emption. Mere presence at the time of bargain or at the time of attestation of sale mutation does not amount to waiver in Jaw. On the subject case-law reported in 2002 SCMR page 49 can be relied upon. The relevant part of which reads as under:--- "Ss.4 & 21---Right of pre-emption---Principle of waiver and estoppel---Applicability---Presence of pre-emptor at the time of attestation of mutation---Effect---Mere presence of the preemptor at such time and even to act as witness in the bargain was not sufficient to prove the waiver of right of pre-emption or could not constitute estoppel."
14. Another case-law on the subject could be one reported in PLD 2007 SC page 26 wherein their Lordship made the following observations:--- "Pre-emption suit---Waiver of right of pre-emption---Overt and positive acts necessary for participation in sale transaction."
15. For the foregoing reasons it is held that the impugned judgment E of learned Appellate Court is based on proper reasoning and correct exposition of law which cannot be taken to any exception, therefore, I finding no merit in the instant revision petition, the same stands E dismissed with no order as to cost.