' MUHAMMAD NOOR MESKANZAI, J.---Instant Revision Petition is directed against the judgments and decrees dated 26th September, 2008 passed by Qazi Awaran and 31st March, 2009 passed by the Majlis-e-Shoora Khuzdar, whereby the suit filed by respondent was decreed and appeal filed by petitioners was dismissed.
2. Facts relevant for disposal of instant revision petition are that the respondent instituted a suit for cancellation of mutation and pre-emption against the petitioners in the Court of Qazi Awaran. It was averred in the plaint the parties own their properties adjacent to each other. The defendant No.1 sold his property to defendant No. 2 against a consideration of Rs.50,000 despite of the fact that plaintiff asserted his right of pre-emption and expressed his willingness to purchase the same but all the efforts made by plaintiff borne no fruit, hence the suit in question was filed.
3. The suit was not contested by petitioners/defendants rather all the facts were admitted in the written statement. The learned Qazi Awaran in view of written statement decreed the suit vide judgment and decree dated 16th September, 2009. The petitioner feeling aggrieved of above referred judgment/ decree preferred an appeal before the learned Majlis-e-Shoora Khuzdar, which too was dismissed. Hence instant revision petition.
4. I have heard Mr. Sardar Ahmed Haleemi Advocate for petitioners whereas Qazi Muhammad Haroon Mengal Advocate represented the respondent.
' Learned counsel for the petitioner inter alia contended that the trial Court failed to take note of the fact that power of attorney so placed before the Court could not be treated as a power of attorney enabling the attorney to appoint further attorney. The collusive written statement filed by the so- called attorney, carries no legal weight. It was strenuously urged that the trial Court and the appellate Court absolutely failed to take into consideration the so-called plaint, which could not be treated as plaint, therefore, no proceeding could have been initiated on the basis of said incompetent suit. It was maintained that plaintiff has filed a suit for pre-emption and the prerequisites of such suit i.e. The Talbs' are lacking and missing in the plaint, hence it was the paramount duty of the trial Court to have rejected the plaint undef Order VII Rule 11 sub-clause (d) of C.P.C. By not adopting the course, the trial Court and the appellate Court committed irregularity and thus impugned judgments and decrees passed by both the lower forums are revisable. The learned counsel emphatically submitted that the appellate Court did not take into account the glaring illegality committed by the trial Court. Reliance was placed on CLC 2005 Page 1774.
' On the other hand, the learned counsel for the respondent vehemently opposed the arguments so addressed at bar and submitted that the trial Court was option less as the claim of plaintiff was admitted in the written statement. The trial Court rightly decreed the suit. As far as the non- availability of detail and the nature of `Talab' in the plaint are concerned, this plea lacks value in view of the fact that the word Shifa' has been used in the plaint and the details and nature of Talab' could have been described by the witnesses during their course of examination. The appeal was not competent before the appellate Court, therefore, the same was rightly rejected. The learned counsel for respondent made a reference of Order III Rule 4-5(a) of C.P.C., and stated that the agent is quite competent to enevr into any sort of transaction on behalf of principle and on that analogy the written statement was legally taken into consideration. Learned counsel for the respondent requested for dismissal of petition.
5. I have considered the contentions so put forth by the learned counsel for the parties and have gone through the available record of the case with their able assistance. The perusal of record reflects that suit filed by respondent for pre-emption was highly defective for the sake of convenience let the relevant portions of the plaint be reproduced:-- {{URDU TEXT}}
6. A meaningful perusal of the contents referred to hereinabove leave no room for doubt that the plaint filed by the plaintiff does not qualify the status and standard of a suit required to be filed in pre-emption cases. Secondly I have not been impressed by the contentions of learned counsel for the respondent that the mere word of Shifa in the plaint is sufficient and the details Talbs would have been provided by the witnesses. The argument is without substance and absolutely lacks legal sanctity for the simple reason firstly that the evidence beyond pleadings is inadmissible. In a preemption case, the plaintiff is bound to mention the date, time and presence of witnesses before whom the `Talb-eMawatubat' and Talb-e-Ishhad' were performed. Thirdly, a suit lacking such prerequisites is not maintainable. The Courts are required to inevitably consider and look at the maintainability and competency of the suit by examining the contents of plaint and analyzing the same within the framework of Order VII, Rule 11, C.P.C. In this regard reliance is placed on the judgment reported in 2002 SCMR 338 (S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at page 342), wherein it has been held as under:-- "Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself.
The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected."
7. Viewing the case of plaintiff/respondent with this perspective, unhesitantly, it can be concluded that the suit for preemption was not competent for lack of the necessary talbs. In a- suit for pre- emption, the talbs being pre requisite re-condition for the competency and maintainability of the suit cannot at all be ignored. As the talbs are. Sine qua non for enforcement of right of pre-emption and admittedly the same have not been performed by the plaintiff, therefore, the suit was not maintainable. By holding the view, I am supported by the following judgments:--
(A) 1999 SCMR 2496 (Mian Muhammad Sharif Shah and another v. Rashid Jan Khan and another), wherein it was observed as under:-- "10. There is another circumstance for dismissing the appeal, inasmuch as, the High Court rightly recorded finding that the appellants have not fulfilled the requirement of Talbs. Refer the following concluding passage of the impugned judgment:-- "I have found that although the suit has been instituted after the enforcement of the N-W.F.P. Act No.X of 1987, the pre-emptors have not mentioned anything in the plaint on the demands of preemption as to whether they have made any such demands in the, order as stated in section 13 of the Act aforesaid. There cannot be any dispute that the pre-emption suit could not proceed in the absence of such demands even if we absolve them of the liability for which their suit has been dismissed under section 24(2) of the Act."
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"V2;i1:44M `t-13 V't it '10 1').11111-:!, AVIA - 3 1-Avito '1"7:1/14SP'the Art wt.i.987, was adopted -4,-":1i4191f togiveceffeet4o the Islamic.Lxzw*f pre-emption, tas='expldined by.,4tis Court in Itheocas'eAaf. Said-Kamdti. ,,iv,,lletehle.,,t414'..Court,lbri the ,que viol) demanti4ofiptereMption ,(Talbs) k obs4r,vest-Ithavitherequitenzenr .Of Talb'ibeing'a sisittv Apn ,for: enforeementoof ;the:. Right,-:of pr'r emptiatt,:recognised= by the-Muslim . LaW, nonteomplianot qiud,. The effect of elyinguishing the'. Pre, emptipe alt,114-Ch...,pv:47 emptors.
In other words, the demand of re-eiziption is an integral par of the mid of pre-emption. .3",Thk'ttpghisit of tit& distaSSiorr that only such "-suits,.:'-11Whith.- were pending before the commencement of the A,ct 1987 wit not abate where the right of Pre-emption is claimed, by such pre-emptors in whom the right of pre-emPtion'Vesis under section 6 of the said _Act and iney have made a demand-of emotion " (Talb) as required under the provisions of section 13 thereofss "
8. As far as. The abjection regarding maintainability appeal before the appellate Coinvt "ilia ttie revision before this Court on the ground of ,non-availability of power of attorney, stiffice to observe that the appellateACourt- 'Could lame: asked the petitioner to file a power of attorney, if in view OV'aiiieliateCcinit; -the' power of attorney was not available. Secondly the appellate Court committed material irregularity= by; -clawing:4n Litifetehee that the timmb ;impression po,the Vakalat-Narna iefdried: Without sending the signature's to the expert or itself conducting an enquiry, -4,1X4t-A9CA444VP- f9R11-5K11 4Tk,P.Otten an mere presumptions. AA*.As the power of attorney before this &Lit concerned, a-WPF assumption of jurisdiction by an inferior forum. As far as the admission of claim in written statement is concerned, it may be observed that there was no legal and valid claim, therefore, no question of admission. Moreover, the alleged power of attorney does not entitle the so-called attorney to file such a collusive written statement; hence no weight can be given to such unfounded and baseless written statement. In the light of above discussion, I am inclined to accept the petition and set aside the impugned judgment and decree passed by both the courts below with the result, the plaint filed by respondent is rejected/dismissed under Order VII Rule 11 Sub- clause (d). The parties to bear their own costs. {{BLUR PAGE}}