Ejaz Afzal Khan, J.--Civil Appeals No, 1023 and 1061 of 2006 have arisen out of the judgments dated 13.1.2003 and 14.11.2003 of the learned Judge of the Peshawar High Court whereby the revision petitions filed by the appellant were dismissed and judgments and decrees passed by the learned Appellate Court were upheld.
2. Brief facts of Civil Appeal No, 1023/2006 as described in Paragraph No, 2 of the impugned judgment read as under: "2. A suit seeking pre-emption decree was instituted in respect of suit land transferred vide Mutation No, 20970 attested on 7.11.1993. This land was ostensibly given in exchange of land transferred vide Mutation No, 20971 of the same date. When was put on notice, the petitioner contested the suit by filing written statements. Trial was held which ended in dismissal of the suit which was reversed in appeal and suit was allowed."
3. Likewise the brief facts of Civil Appeal No, 1061 of 2006 as described in second paragraph of the impugned judgment read as under: "2. The respondent instituted suit for possession through pre-emption regarding the suit land which was purchased through Mutation No, 20938 dated 7.11.1993 by the petitioner. The suit was resisted and written statement was filed by the petitioner/ defendant and at the conclusion of the trial the same was dismissed as aforesaid."
4. Leave to appeal in both the cases was granted to consider whether the immediate demand and demand through notice could be said to have been made in accordance with the requirements of Section 13 of the Punjab Pre-emption Act, (IX 1991).
5. Learned counsel appearing on behalf of appellant contended that though the dates of making demands have been mentioned in the plaint but their time and place is conspicuous by their absence. Such suits, the learned counsel added, are liable to be dismissed in view of the latest pronouncement of the Supreme Court rendered in the case of Pir Muhammad u. Faqir. Muhammad (PLD 2007 SC 302). The learned counsel next contended that evidence of the respondent/pre- emptor is also deficient viz-a-viz the particulars of date, time and place of making demands, therefore, the suit of the respondent was liable to be dismissed on this score as well. Failure on the part of the respondent, the learned counsel submitted, to appear in person so as to establish demands would be another ground for non-suiting him. The learned counsel to support his contention placed reliance on the cases of Abdul Qayyum v. Muhammad Sadiq (2007 SCM R 957) and Mst. Lalan Bibi v. Muhammad Khan (2007 SCM R 1193).
6. As against that learned counsel appearing on behalf of the respondents contended that the particulars as to the dates of making demands which are necessary for the purpose of calculating time have been mentioned in the plaint. The particulars as to the time and place of making demands, he added, being particulars of evidence are not required to be mentioned in the plaint, therefore, omission to mention them in the plaint is not fatal, The learned counsel to support his contention placed reliance on the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCM R 329) and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCM R 314). The learned counsel by referring to the cases of the Province of East Pakistan v. Dr. Abdul Aziz (PLD 1963 SC 296), Multiline Associates v. Ardeshir Cowasjee (1995 SCM R 362) and Ardeshir Cowasjee v. Karachi Building Control Authority [KMC] (1999 SCM R 2883) contended that where an earlier judgment delivered by a Bench is binding on all the subsequent Benches of equal or less number of Judges, the view taken in the cases of Haji Noor Muhammad v.
Abdul Ghani and 2 others (2000 SCM R 329) and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCM R 314) could not have been dissented from by a Bench of equal number of Judges as had been done in the case of Pir Muhammad v. Faqir Muhammad (supra). The earlier judgments, the learned counsel concluded, would therefore, still hold the field.
7. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
8. A look at the plaint would show that the respondent mentioned only the dates and not the time and place of making demands. Time and place of making immediate demand and demand through notice were essential particulars of pleadings which were also required to be mentioned in the plaint to prove as to when and where did the pre-emptor receive information and how did he respond to that. Omission of these particulars in view of the judgment rendered in the case of Pir Muhammad v. Faqir Muhammad (supra) would be fatal. The rationale behind mentioning these particulars has further been explained in Paragraph-4 of the aforesaid judgment which reads as under:-- "4. It is observed that great emphasis and importance is to be given to this word in making of Talb- i-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of preemption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove alter performing Talb-i-Muwathibat in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i,e, making of Talb-i-Ishhad as soon as possible after making Talb-iMuwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-sections (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i,e, 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to sub-section (3) of Section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-iMuwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-lshhad. It is now a well- settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit, it may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of Section 13 of the Act. This Court in the case of Rana Muhammad Tufail v. Munir Ahmed and another (PLD 2001 SC 13), declined to grant leave to appeal maintaining the judgment of the learned High Court ac there was four hours delay in making the Talb-i-Muwathibat from the time of receiving the knowledge of the sale, In the case of Mst. Sundri Bai v. Ghulam Hussain (1983 CC 2441) High Court of Sindh, held the delay of 1(1/2) hour, in making Talb-i-Muwathibat to the fatal to the scheme of Shufa when the pre-emptor was residing on the first floor while the purchaser /respondent was residing on the ground floor of the same building. In another case of Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (C.A. 1618 of 2003) this view was endorsed.
9. The question why the earlier judgments rendered in the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (supra) were not considered as of binding force has been answered in Paragraph-5 of the judgment which reads as under:--
5. Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCM R 329) decided on 27-10-1999 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCM R 314) decided on 15-11-1999, wherein the consensus was that in view of the law of pleadings, it is not necessary to give the details including the date, place and time of performance of Talb-i-Muwathibat. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail the, importance and implication of the word immediate as has been provided in Explanation I to Section 13 of Act, 1991 otherwise there was every possibility of arriving at the view which we are intending to take in this case. However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order VI, Rule 5, C.P.C. as evidence is not required to be noted in the pleadings and only necessary details are to he furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Salem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Suhhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977). wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-i-Muwathibat. Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit.
10.The main reason for dissenting from the earlier judgments rendered in the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (supra), according to the paragraphs reproduced above was that they were rendered without considering in detail the importance and implication of the word "immediate as has been mentioned in Explanation I to Section 13 of the Act. These judgments, therefore, could not be treated as precedents having binding force. Such judgments being rendered in derogation of an important part of the provision as mentioned above were per incuriam and as such lost their binding force. Therefore, reference to the cases of the Province of East Pakistan v. Dr. Abdul Aziz, Multiline Associates v. Ardeshir Cowasjee and Ardeshir Cowasjee v.
Karachi Building Control Authority [KW] would not have any perceptible relevance to the case in hand. Needless to say that only that judgment has a binding force which has been rendered after considering all the conceivable aspects of the relevant law.
11.Assuming that the particulars as to the date, time and place of making immediate demand and demand through notice being particulars of evidence, need not be mentioned in the plaint, yet respondent cannot defend the impugned judgments when these particulars have not been mentioned even in his evidence recorded in the Court. These particulars in the first instance, were required to be stated in the Court by the respondent himself as was held in the cases of Abdul Qayyurn v. Muhammad Sadiq and Mst. Lalan Bibi v. Muhammad Khan (supra). But where he opted not to appear as a witness of his own without there being any disability on his part, these, particulars ought to have been mentioned by his attorney in his evidence. A look at the statement of the attorney would reveal that he, too, did not mention any of these particulars. Though he stated that he received information about the sale on 16.11.1993 but when and where did he inform his brother and what was the time therefor have not been mentioned. Against this backdrop it can well be said that the respondent could not prove the requisite demands in accordance with the requirements of law. With this state of evidence we don't think he could hope to succeed in his suits for the enforcement of right of pre-emption under the latest dispensation.
12.For the reasons discussed above, we allow these appeals, set aside the impugned judgments of the learned Appellate and Revisional Courts and restore those of trial Court.