Muhammad Ameer Bhatti, J. Suit for possession through pre emption, filed by the petitioner , was decreed by the learned trial Court vide judgment dated 20.04.2006 and appeal whereof was accepted by the learned first appellate Court through impugned judgment dated 19.01.2010, as a consequence whereof the suit stood dismissed; hence this revision petition.
2. At the very outset, it is observed that the notice of Talb-i- Ishhad was dispatched to the predecessor-in-interest of respondents through ordinary registry and not under the cover of acknowledgement due as required under Section 13 of the Punjab Pre-emption Act, 1991; hence, non-fulfilling this mandatory requirement of law being incurable defect in performance of Talb-i-Ishhad , is enough to extinguish the right of pre-emptor .
3. However , in the interest of justice, I have heard the learned counsels for the parties and examined record of the case with their able assistance.
4. One receipt available on record as Exh.PW5/1 has been claimed by the learned counsel for the petitioner to be acknowledgement receipt which contains alleged signatures of the recipient/vendee/predecessor-in-interest of respondents, therefore, it is argued that the petitioner had fulfilled the requisite requirement of law; hence could not be non-suited on account of non-availability of recognized/qualified receipt of acknowledgement due.
5. Before determining the status of this receipt to be treated as acknowledgement due, it is necessary to point-out that the plaint as well as testimony of witnesses are silent with regard to sending of notice of Talb-i-Ishhad through registered cover acknowledgement due rather it was simply registered, so there is no proof on record that the registry was sent under the cover of acknowledgement due; hence, it is easy to close this chapter on account of deficiency in evidence regarding sendin g of notice of Talb-i-Ishhad through registered acknowledgment due. But the Postman (PW-5) appeared to prove the factum of delivery of notice and produced the receipt dated 17.06.1996 showing that he delivered the registry and obtained the signatures of the recipient-vendee although, as stated above, plaint and testimony of the plaintif f are silent qua delivery of notice to the vendee because the Postman had not returned the acknowledgment due to its sender , therefore, it is easy to infer that pre emptor has failed to establish that notice was sent to the vendee through registered acknowledgement due.
6. Now coming to the status of receipt produced by Postman (PW-5). Astonishingly Postman kept this receipt allegedly carrying signatures of vendee allegedly received on 15.06.1995, in his personal custody, which was tendered by him in his testimony on 21.11.2000 whereas law does not permit any official/officer to retain the official record in his own custody and that too for such a long time, so production of this receipt itself casts serious doubt about its validity. Besides this acknowledgement due needs authenticity of post office, which could only be issued provided the sender paid the additional charges. It is also requirement of law that at the time of receiving the registry the post office issues a receipt and in case of acknowledgement charges additional amount of Rs.10/- indicating it on registry/receipt as an "AD" and it is also necessary to be issued on prescribed form and ordinary or loose paper, as produced by the Postman which did not contain the stamp of its issuance, cannot be termed to be prescribed receipt and issued in process provided in law. It does require to be issued by the post office under the process given in the Rules and Regulations of the Post Office Manual. Nobody has any right to retain this official document in his own custody; hence violation thereof entails consequences being an offence.
Additionally, it was the duty of the post office to return it, if it was acknowledgement receipt; to the dispatcher because it was the only authentic document to prove delivery of registry for which he had paid the additional charges otherwise it would have been an ordinary registry. In such eventuality, production of receipt by the Postman from his own custody, after lapse of more than five years from its delivery to the vendee, amounts to make improvement and have no legal value. Neither it was the obligation of the Postman to obtain signature of recipient on some loose-paper nor could it have been retained by the Postman in his custody inasmuch as either if it was prescribed AD issued in process of registry, it ought to have been returned to the present petitioner/pre- emptor as mandated by law or deposited with the Post Office for its transmission to the dispatcher. There is official requirement for obtaining of signature at the time of delivery of the registry on a register maintained officially irrespective of the fact that it was under cover of acknowledgment due or not and if it is under acknowledgment due then additionally signatures must have been obtained on the receipt which is called acknowledgement due for which additional amount of Rs.10/- is charged by the post office for its onward acceleration to its sender as proof of its sending and receiving. Therefore, for reasons under discussion, this receipt cannot attain the status of acknowledgement due. Even otherwise, the receipt of registry produced as Exh.P9 is silent and there is no indication of its registry as "AD" as Post Office in case acknowledgement due after receiving additional charges was bound to specify it on this receipt as an "AD" and missing of indication on receipt Exh.P.9 coupled with other deficiencies explained above are enough to hold that registry was of ordinary and not with acknowledgement due.
For ready reference, to set the controversy at rest, the relevant portion from The Post Office Manual Volume VI Post Office Second Edition (Corrected up to 1st October, 2016), is re produced as under:-
171. Treatment of articles presented for registration --
(1) An article of the letter mail presented for registration should be examined to see that it bears the name and full address of both the addressee and the sender along with the post code number written after the name of post town as well as telephone number / cell number and that it is in good condition and that the postage and registration fee and, in the case of air mail articles, the air fee prescribed for the air route to be followed are fully paid, the article being weighed for this purpose. In the case of a parcel, inland or foreign, it should be examined to see that the conditions laid down in the Post Office Guide have been complied with, that the sender has the total intrinsic value of the contents of the parcel on its face, that it bears the name and complete address of the addressee and the sender with post code number written after the name of the post town and telephone number/cell number. It should also be ensured that the parcel bears the number of the valid Computerized National Identity Card of the sender or particulars of International passport in case of a foreign national, correctly written on the cover thereof. (in case of foreign outward parcel see rule 148 above). The booking clerk must check the authenticity of the particulars of the Computerized National Identity Card or passport, as the case may be, from the original documents to be shown by the sender or his agent. All parcels should be weighed to ascertain the amount of postage charges due. With the exception of articles fully prepaid with service postage stamps, or bearing the franked labels of the licensed franking machine in full prepayment of the prescribed charges, the postage fees and all other charges on parcels including value-payable parcels and insured parcels must be realized in cash by the parcel registration clerk. If the fee for an acknowledgement of delivery has been paid for at the time an article is presented for registration it must be accompanied by a prescribed form of acknowledgement R.P.54 or Advice of receipt/of delivery in form CN 07 duly filled in. A receipt for the sender should then be prepared on one of the forms in the prescribed registered journal Form R.P.51
(RD) or R.P.51 (a)(RD) in case of articles of letter mail and in Form R.P.51(PD) or R.P.51(VPD) for parcel mail articles, as the case may be, in which the name of the addressee, the post office of destination, weight of the article and the amount charged should be recorded in the parcels provided in the form; and in the case of air mail articles, a remark " By Air Mail" should be made at the top of the form. The serial No. printed on the receipt and the date of posting should be clearly written at once on the face of the article, in large bold figures, in ink.
Exception. --The amount should not be recorded in the receipt in case of uninsured letter of not more than the initial weight prescribed in the Post Office Guide on which no acknowledgment is due.
NOTE. --The receipt granted to the sender of a registered article in respect of which a fee for a special acknowledgment has been paid, will have the letters "A.D." written across it.
(2) Each set of forms in the registered journal comprises (a) the receipt for the sender , and (b) the office record or registered or parcel journal proper and the entries made in the upper form are copied on the lower by means of carbonic paper so that both documents are prepared and initial at one process. Double-sided carbonic paper must always be used for this purpose.
(3) The receipt for the sender should be detached from the journal, stamped with the date-stamp, and handed to the person who presented the article for registration, except in the case of an article registered by the postmaster on service, in which case the receipt should be stamped and left on record in the journal. All the articles registered each day should be entered on the receipt side of the abstract concerned.
(4) If an article presented for registration is believed to contain anything the insurance of which is compulsory, it should be refused registration unless the sender is willing also to insure it.
NOTE.- In case the intrinsic value of contents of any article of letter or parcel mail exceeds two thousands rupees it will be accepted for transmission by main by insured post only in accordance with the provisions contained in rule 93 of the Pakistan Post Of fice, Rules, 1961.
(5) If a registered article of the letter mail which has been delivered, is presented with a revised address for registration at the office which delivered it, or at any other office within the local limits of the same post-town, a fresh registration fee is payable, but no additional postage should be charged on the article unless it has been opened. In the case of registered parcels presented in like manner , a redirection fee should also be charged, unless the original address and the substituted address are within the delivery area of the same post office or are within the same post-town. This fee can be prepaid by the person presenting it or will otherwise be marked on the parcel for recovery from the addressee.
(6) If an inland registered article after having been accepted for despatch is suspected or found in the office of posting to contain anything the transmission of which by the inland post is prohibit ed, it should be dealt with under rule 122 of the Post Of fice Manual, V olume V .
184. Receipts, acknowledgments and undelivered articles received from sub-account department.--(1)
The receipts and acknowledgments (if any) for the registered articles delivered by village postmen, the receipts for those delivered by branch offices not authorized to perform independent registration work in direct account with the office, receipts for v.-p. articles delivered by all branch offices in account with it, the articles returned undelivered with the receipts and acknowledgments, if any, in the case of registered articles will be made over, under receipt, by the sub-account clerk to the registration or parcel clerk, as the case may be. The latter should carefully examine the receipts in the manner described in the preceding rule and tick off the entries in the registered or parcel abstract relating to the registered articles delivered and returned.
(2) The instructions contained in paragraph (6) of rule 183 apply also to acknowledgments brought back unsigned by village postmen.
(3) If any undue delay is noticed by the registration or parcel clerk in the disposal of an article made over to the sub-account clerk, the matter should be brought to the notice of the postmaster in writing. The absence of a tick mark against the entry in the abstract of a registered article made over to the sub-account clerk will show (unless the article is a registered article of the letter or parcel mail sent to a branch office which performs registration work independently) that it has neither been delivered nor returned to the registration or parcel department.
192. Return of undeliverable articles to senders .--(1) When an unclaimed or refused article is received by the office of posting for return to the sender , it should be issued for delivery in the usual course, except that, if there is an acknowledgment, attached this need not be sent out with the article, but may be destroyed.
NOTE. --When an unclaimed or refused article is to be sent to a branch office for return to the sender the acknowledgment accompanying it, if any, should be destroyed in the account office, after noting the name and address of the sender on the article if it does not already exist there.
(2) If the article cannot be delivered by the office of posting, the registration or parcel clerk concerned should clearly indicate over his dated initials the cause of its non-return to the sender by writing on it the remark "Left", "Not known", "Not claimed", "Deceased" or "Refused", as circumstances may require, and then forward the article, by first post, through the headquarters post office to the R.L.O. The same remark should be written against the entry of the article in the list with which it was received. The receipt prepared in the office should be filed with the list with which the article was received.
(3) Deleted
(4) If an unclaimed article of the letter mail which has been received in the office of posting from the R.L.O. for redelivery to the sender is returned to the postman by the sender without having been opened by him, with information as to the revised address of the addressee, it should be treated as a redirected article and no additional postage should be charged on it. In the case of an unclaimed parcel, returned in like manner to be forwarded to the addressee, a redirection fee, if leviable under the rules and any redirection fees which may have been cancelled at the time of return of the parcel to the sender , should be noted on the article for recovery from the addressee.
(5) If an intimation in respect of an unclaimed parcel is received from the Returned Letter Office vide rule 422 (3) of the Post Office Manual , Volume VIII, a note to this effect should be made on the back of the relative receipt of the parcel journal and in the of fice copy of the parcel list.
NOTE. --See Note below rule 290 (1)
A. In sub-offices, undeliverable registered articles of the letter mail should be forwarded to the head office and undeliverable parcels intended for the R.L.O. should be forwarded through the head office.
196. Disposal of acknowledgments .--(1) The acknowledgments (Form RP.-54) for registered articles delivered should be stamped and made over to the postmaster at the time the registered or parcel abstract is placed before him for check.
(2) When applying the check prescribed in rules 186 and 195, the postmaster should satisfy himself, by reference to the acknowledgments for registered articles delivered and the registered and parcel abstracts [(Form R.P-33) and (Form R.P 8)] that there is a properly signed acknowledgment for every insured article and for every ordinary registered article for which an acknowled gment is due. The postmaster should then initial the abstracts in token of having applied the checks prescribed in this rule and the rules cited above and see that the acknowledgments are transferred at once to the sorting departments for despatch. It must be ensured that all the acknowledgements shall be despatched to the of fice of delivery duly entering the particulars thereof in the Registered List.
(3) Outward acknowledgments for foreign registered articles, i.e., Advice of Receipts/ or Delivery in Form CN 07 in respect of foreign registered articles and parcels received for delivery in Pakistan should, after completion, be forwarded to the country of origin in the same way as an unregistered article consigned by Air Mail.
7. In view of above, the instant petition having no merit stands dismissed . No order as to costs.
8. Before parting with the judgment, I deem it appropriate to say thanks to Post Master General who appointed Officer, well conversant with the relevant law for providing me all the assistance.