MUHAMMAD NAEEM ANW AR, J. Petitioner has called in question the validity of Judgment and decree of learned Additional District Judge-1, Tehsil Lahor , District Swabi, dated 07-01-2020, where by the appeal filed by him was dismissed and the judgment and decree of learned Civil Judge-IV , dated 07-1 1-2018 was upheld.
2. Facts leading to the institution of this petition are that the respondent has purchased property from Khasra Nos.
3610, 3658, 3575, 3694, 3551, 3553, 3550, 3549, 3552, measuring 18-Marlas through unregistered deed dated 08- 11-2012, from the agriculture estate of Yar Hussain of District Swabi. The petitioner alleged that he was informed by Tella Muhammad son of Shamas-ul-Qamar , at 08:00 A.M, on 10-12-2012, when he was sitting with his son Abdul Samad, in his Hujra, situated at Harif Khan Kilay Chak Yar Hussain, he then and there announced his intention to pre-empt the sale, followed by issuance of Notice of Talb-i-ish'had, duly signed by the marginal witnesses, sent through registered post with acknowledgement due on 12-12-2012 to the respondent. It was also alleged that the transactions were affected for sale consideration of Rs 5000/- per Marla, however , an exaggerated amount of Rs 14000/- per Marla was entered in mutation in order to defeat the petitioner 's pre-emption right.
Further contended that he has got superior right of pre-emption as against respondent, who was asked to transfer the property in favour of petitioner for actual sale consideration but he refused.
3. Respondent resisted the suit on many legal and factual objections, through their written statement. The petitioner was non-suited for non-fulfillment of requisite talabs by the learned trial court. Being not satisfied with the judgment of the learned trial court, the petitioner filed an appeal, however , met with the same fate, hence, the petition.
4. Learned counsel for petitioner conten ded that petitioner has proved his case through convincing and cogent evidence as all the witnesses remained consistent in their statement. He added that Notices were served upon the vendee/respondent, however , the courts below have not apprised the evidence in its true perspective which resulted into grave miscarriage of justice.
5. I have heard the learned counsel for petitioner and have gone through the record with his valuable assistance.
6. In order to prove the requisite talabs, the petitioner/plaintif f produced Haroon, the Post Master as P.W.1, who produced receipt of registered letter No. 1578, booked in the name of Mst. Sharifzadgai (vendee/respondent) as Ex PW 1/1. In his examination in chief, he deposed that registered letter No.1578 was received by Hazrat Umer son of Shamas-ur-Rafique and signed the receipt Exh. PW 1/3. Statement of Ishfaq Ahmad Postman/ record keeper was recorded as P/W.03 on 04-01-2017, who adduced that he has been posted in Post Office Yar Hussain for four months and prior to him Hidayat Ali Shah was posted there, who is the resident of Sur Dher . Petitioner appeared as P.W.1, who in cross examination stated that Tilla Muhammad (informer) is his son in law, who is the resident of village Bakyana, which is half Kilometer away from his village Hareef Khan, who informed him about the sale in question at 08:00 A.M. on 10-12-2012, in his Hujra where he was sitting with his son Abul Samad. Tillah Muhammad appeared as P.W 6, who deposed that he was informed by his cousin Sharafat in front of Masjid of Bakyana at 07:45, wherefrom he went to his home and after taking breakfast, he proceeded to Killay Hareef Khan, which is at a distance of half kilometer , where he informed the plaintif f/petitioner at 08:00 A.M. When there is a distance of half kilometer between Bakyana and village Hareef Khan, and Tilla Muhammad got the information from one Sharafat just outside the Mosque at 07:45.A.M and went to home for breakfast and then proceeded to village Hareef Khan, in such an eventuality , after getting the knowledge at 07:45, taking the breakfast and in reaching the hujra of petitioner , when there is a distanc e of half kilometer which too is not metalled road, does not appeal to the prudent mind to have had informed the petitioner at 08:00A.M, thus, both the learned courts below have rightly held that the petitioner could not prove talb-i-muwathibat. The right of pre-emption is not established until the demand be properly made in the presence of the witnesses; and it is requisite that it be made as soon as possible after the sale is known; for the right of pre-emption which is a feeble right, as it is disseizing another of his property merely in order to apprehend inconvenience. It is, therefore, requisite that pre-emptor without delay discover his intentions, by making the demand; which must be done in the presence of witnesses, otherwise it cannot be afterword proved before the court. As defined by CHARLES HAMIL TON in the commentary of HIDA YA by SHEIKH BURHANUDDIN ABI AL HASAN AL MARGHINANI Volume III Book XXXVIII (of SHUF'AH) page 360.
7. The august supreme court in case titled Mir MUHAMMAD KHAN and 2 others Versus HAIDER and others (PLD 2020 SC 233) has held that;- "A bare reading of section 13 (ibid) makes it clear that any act towards the exercise of the right of pre-emption that does not follow the process laid down for making the demand of pre-emption will necessarily fail, The process for making such a demand has three elements: Talb-i-Muwathibat, Talb-i-Ishhad, and Talb-i-Khusumat. Any pre-emptor who fails to fulfil any one of these elements, in the manner provided by law and interpreted and explained by courts, cannot be successful in his attempt to pre-empt the sale of a property that falls within the ambit of the law on pre emption."In para No. 13 of the judgment it was held by their Lordships, "The right of pre-emption is also a unique and fragile right. Unlike many other rights bestowed by law, the exercise of this right depends entirely on the timely making of the various demands set out in section 13. It is also obvious, from a bare reading of section 13 that the making of Talb-i-Muwathibat is the foundation on which the making of Talb-i-Ishhad and Talb-i-Khusumat is based. In fact, the timelines and conditions for the making of Talb-i-Ishhad and Talb-i-Khusumat provided in sections 13(3) and 13(4) of the 1991 Act depend entirely upon the making of Talb-i- Muwathibat. Therefore, the date, time and place of making such demand is pivotal and foundational to the exercise of the right of pre-emption, the importance of which cannot be over-emphasized."
8. Moreover , Talb-i-ishhad was also not proved as the Notice was not served upon the respondent/vendee rather the same was received by one Hazrat Umer son of Shamas-ul-Rafique, in such circumstances, when the notice was not served upon the vendee talb-i-ish'had would not be considered to have been proved, as held by the Hon'ble Supreme Court in Mir Muhammad Khan' s case (supra) that; "Section 13(3) of the 1991 Act clearly sets out that the notice of Talb-i-Ishhad must be served on the vendor through Registered Post with Acknowledgment Due. However , it is obvious from the record that the address mentioned in the postal receipt is not the same as the one mentioned in the notice. Moreover , nothing in the record proves the assertion of the pre-emptor that the notice was ever served on the Respondent in the case, who in his written statement before the Lahore High Court as well as before the Lower Court s categorically denied service of the notice in question. Therefore, it fell upon the Appellant/pre-emptor in the case to prove that the notice had been delivered. By failing to prove the same or even producing the postman who allegedly delivered the notice, the Appellant/pre-emptor failed to establish the sending or receipt of the notice for the performance of Talb-i-Ishhad in this case."
9. Both the learned courts below have analyzed the evidence in its true perspective and rightly non-suited the petitioner for non-fulfillment of talabs, as he could not prove the talabs in accordance with law, however , the findings of learned appellate court to the extent of imposition of cost in term of section 35-A of C.P.C was not within its domain because for imposition of cost the findings of the learned appellate court are as under: - "in absence of any independent witness the appellant got no cause of action at all, his clear mala fide against the respondent is also on record which shows that the appellant did not come to court with clean hands. In these circumstances the appeal in hand is hereby dismissed with a cost of Rs. 20,000/-."
This reveals that the learned appellate court has treated the claim of petitioner as vexatious of false for which the legislature has inserted section 35-A, which reads as: - "35A. Compensatory costs in respect of false or vexatious claims or defences . (1) If in any suit or other proceeding, 2[(including an execution proceeding)], not being an appeal , any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector , false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter , as against the objector , such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation." " Underlined for emphasis"
Likewise Order XLI rule 33 of the Code reads as:- "33. Power of Court of Appeal. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court Code of Civil Procedure, 1908 [1908 : V] notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection: 1[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order]".
This court in case ABDUR RAHIM SATHI Versus GHULAM SAR WAR and 11 others reported in (2009 CLC 1039 ) while dealing with the application of the provisions of section 35 & 35-A by the appellate Court has held, "With regard to compensatory costs, it appears from the language of impugned order that learned lower Court has acted under section 35-A, C.P.C. in awarding heavy cost to respondents. It is mentioned that according to section 35-A subsection (2), C.P.C. the maximum prescribed limit for compensatory costs shall not exceed twenty-five thousand rupees whereas the learned appellate Court has awarded thirty thousand rupees as compensation to the respondents, by exceeding the maximum limit fixed by the law Apart from the above, as contemplated in section 35-A read with Order XLI, rule 33, C.P.C. under its proviso, appellate Court is stave off granting compensatory costs to successful party , therefore, the impugned order to that effect is patently illegal and against the spirit of section 35-A of the Code. Actually , said section of law empowers the trial Court alone to give compensatory costs to the successful party against the defeated party , if the claim or defence is found false, vexatious and the successful party has taken the plea at earliest stage of suit.
In the case of SINDH INDUSTRIAL TRADING ESTATES through its Secretary , Karachi Versus Mst. QAMAR HILAL and 5 others 2001 SCMR 1680 , enunciated by their Lordships that, "However , once the learned Judge has found the appeal to be absolutely false and vexatious, no costs could be awarded for such reasons as it would amount to awarding costs under section 35-A which provision dealt with costs for false or vexatious in case of suit or other proceeding (including execution proceedings) and not an appeal, consequently award of compensatory costs in appeal would clearly fall outside the jurisdiction of the appellate Court."
Thus, imposition of cost of Rs. 20,000/- by the learned appellate court is held to be without jurisdiction, as such, to this extent the findings are modified.
10. For the reasons discussed above, except the above modification, this petition being without substance is hereby dismissed.