IJAZ ANWAR, J. The petitioner has filed instant Civil Revision under Section 115 of the Civil Procedure Code, 1908, challenging the validity of judgment and decree dated 12.04.2011, passed by learned District Judge, Abbottabad, whereby the appeal filed by the respondent against the judgment and decree dated 25.10.2010 of Civil Judge-IX, Abbottabad, dismissing the suit of the respondent was accepted and the suit was decreed.
2. Brief facts of the case are that respondent Mst. Rashida Ishfaq filed a suit against the petitioner exercising her right of per-emption in respect of property transferred in favour of the respondent through mutation No. 14258 attested on 22.09.2005. The suit was contested by the petitioner by filing written statement. The learned trial court, after recording pro and contra evidence, dismissed the suit vide judgment and decree dated 25.10.2010. The respondent/plaintiff assailed the judgment and decree of the learned trial court before learned District Judge, Abbottabad. Learned District Judge, Abbottabad, vide impugned judgment and decree dated 12.04.2011, accepted the appeal and decreed the suit, hence the instant revision petition.
3. Learned counsel for the petitioner argued that the appellate court has not discussed the mandatory requirement pertaining to performance of Talb-i-lshhad. He further argued that there is material contradiction in the statement of respondent/pre-emptor regarding performance of Talb-i -Muwathibat, however, the appellate court failed to take into consideration these facts and thus rendered the judgment contrary to law. He further contended that postman or the official of the post office to confirm the delivery of notice Talb-i-Ishhad were not produced and thus the judgment impugned is not sustainable.
4. Learned counsel representing the respondent argued that initially while dismissing the suit of the respondent, the learned trial court has given findings pertaining to the proof of notice Talb-i- Ishhad against the present petitioner but he has not questioned the same at appellate stage as such, he cannot be allowed to raise this question at this stage. He placed reliance on "Ali Ahmed v. Rana Muhammad Akram (2006 CLC 537) and Mir Sahib Khan v. Ghazi Muhammad (PLD 2014 Peshawar 29)". He further contended that minor contradictions are liable to be ignored when the statement of the pre-emptor and his other witnesses were consistent on material particulars.
5. Arguments heard and record perused.
6. Perusal of the record reveals that the pre-emption suit filed by the respondent was dismissed by the learned Civil Judge-IX, Abbottabad, vide judgment and decree dated 25.10.2010 on the ground of failure to perform the mandatory Talb-i-Muwathibat in accordance with the provisions of law. The learned trial court, however, gave certain findings pertaining to the service of notice Talb-i-Ishhad on the ground that merely registering the notice in the post office mentioning the correct address of the defendant/petitioner would carry the presumption of its receipt and placed reliance on "PLD 2003 Peshawar 179". The appellate court, however, while allowing the appeal, has reversed the findings of the learned civil Judge on the point of performance of Talb-i- Muwathibat, but has not discussed whether the respondent has performed Talb-i-Ishhad and that its service is proved on the petitioner through concrete evidence. In the case of "Mst. Bhagay v. Mst. Fatima Bibi (PLD 2004 Lahore 12)", the learned single judge of the Lahore High Court, while referring to the different judgments of the august Supreme Court of Pakistan, held as under:-- "I am afraid, the above contentions have no force. Though, the respondents have not filed any cross-objections to the findings of the learned Court of Appeal on Issue No. 9-A, but according to the rule laid down in Khairati and others v. Aleem ud Din and others (PLD 1973 SC 295), when the respondent in an appeal is not attacking the decree or seeking its reversal or modification, but only intends to challenge the findings of the Court below on one of the issues involved in the list the respondent can always make oral submissions, to assail the findings on the issue going against him. This rule is primarily enunciated in the matters, relating to appeals, but I am guided by the judgment of the Hon'ble Supreme Court, reported as Zakirullah Khan and others v. Faizullah Khan and others (1999 SCMR 971), according to which, the cross-objections can also be filed in the revisional proceedings, however, if the cross-objections have not been filed by the respondents, an analogy can be safely drawn as per judgment reported as PLD 1973 SC 295, to hold that while arguing a revision, the respondent of the case, who is not challenging the decree in his favour, but only the findings of a particular issue, can assail the same during the course of his oral submissions. Moreover, under section 115 of the Civil Procedure Code, "the High Court may make such order in the case as it thinks fit", which means that in the exercise of supervisory jurisdiction, if a material irregularity or error of jurisdiction comes to the notice of the Court, in the interest of justice, the Court can suomotu interfere and correct the findings of an issue".
7. Similarly, the same view was again reiterated by the same honourable judge in the case of "Ali Bahadur v. Nazir Begum and others (PLD 2005 Lahore 218)". Similar view has been expressed in the case of "Mst. Zarin Begum v. Major Aziz-ul-Haq (2006 CLC 1525)" and "Muhammad Nawaz v. Mst. Ahmed Bibi and 3 others (1995 SCMR 266)". Thus it is held that revisional court in the absence of any cross revision or cross objection, still has the powers to see the propriety and the correctness of the judgments of courts below and to pass such orders in the case as it thinks fit in the facts and circumstances of the case where the court below has exercised the jurisdiction illegally or with material irregularity.
8. Now 'coming to the material aspect of the case which prompted this court to interfere, though no cross objection was filed before the appellate court and that is the objection of the petitioner regarding service of notice Talb-i-lshhad. I have scanned the evidence and find that for the proof of preparation of notice Talb-i-Ishhad, though the respondent appeared as PW-3 and also produced the attesting witnesses of the notice as PW-4 and PW-5 but the petitioner has specifically denied in his written statement the performance of requisite Talbats. He has also denied the service of notice Talb-i-Ishhad on him when he appeared as DW-1. Unfortunately, the respondent in support of his stance has not produced the relevant clerk of the post office where the notices were registered and also the postman/delivery man to prove the service of that notice. Section 13(3) of the Khyber Pakhtunkhwa Pre emption Act, 1987, being relevant to the present controversy, is reproduced: Demand of pre-emption.
"13. (1) ........................
(2) ...........................................
(3) Subject to his ability to do so, where a pre-emptor has made Talab-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of preemption:--- Provided that in areas where due to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talab-i-Ishhad in the presence of two truthful witnesses."
9. By bare perusing of subsection (3) of section 13 of the Act ibid, it is crystal clear that requirement of performance of Talb-i-Ishhad is sending a notice in writing attested by two truthful witnesses followed by a rider i.e. under registered cover acknowledgment due. Thus, there are four mandatory requirements of section 13(3) of the Act ibid i.e. (i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgement due. The above requirements can be waived under the above proviso only when in case there is no post office facilities available then Talb-i-Ishhad can be made in presence of two truthful witnesses.
In the instant case, respondent has produced witnesses of notice Talb-i-Ishhad who confirmed their signatures on the notice, however, the record is silent about the service of notice and its delivery on the petitioner because neither the postman who allegedly delivered the registered notice has been produce nor the acknowledgement due card is brought on the record.
10. Though there are earlier judgments of the superior Courts, wherein mere sending of notice through registered cover was considered sufficient, however, the recent law developed on the point has interpreted section 13(3) of Pre-emption Act, according to which the requirement of section 13(3) must be complied with in letter and spirit. In the case of "Muhammad Bashir v.
Abbas Ali Shah (2007 SCMR 1105)", it was held that notice of Talb-i-Ishhad must be served on the vendee and its service on the addressee as prescribed in law is imperative and if the acknowledgment due carries an endorsement of 'refusal' or 'not accepted' a presumption of service would arise unless rebutted and if addressee make a statement on oath denying the service, then the onus of proof would be on the party relying upon such notice. It was further held that if service of notice was denied by the vendee, then it was for the pre-emptor to prove service of notice by producing postman, who allegedly made the endorsement. Exactly same view was followed by Supreme Court of Pakistan in "Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762), Zilla Muhammad v. Qamar Ali Khan (2016 SCMR 184) and Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309)". Apart from above major shortcomings, even the scribe of notice Talb-i- Ishhad is not produced to confirm the existence of notice.
11. Thus the case of respondent was deficient for proof pertaining to service of notice Talb-i- Ishhad under registered cover acknowledgment due. Similarly, postal clerk and postman were also not produced to confirm the delivery of notice on the petitioner, as such the learned appellate court has acted illegally and with material irregularity by ignoring the mandatory provisions of section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
12. For the reasons stated above, this court finds that the respondent has failed to prove the service of notice Talb-i-Ishhad within the meaning of Section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, as such the suit of the respondent is liable to be dismissed on this score alone. Resultantly, this revisions petition is allowed and the judgment and decree of the learned appellant court dated 12.04.2011 is set aside.