Qazi Faez Isa, J.--The learned counsel representing the petitioner states that the petitioners had filed a suit for pre- emption which was decreed-by the Trial Court however on appeal the decree was set aside on the sole ground that the date of Talb-i-Ishhad notice was not mentioned in the plaint. The learned counsel submits that the learned District Judge, H'aripur relied, on the decisions in the cases of Pir Muhammad v. Faqir Muhammad (PLD 2007 Supreme Court 302) and Saleem Akhtar v. Shauk Ahmed (2009 SCMR 673) but; did not consider the earlier decision in the case of Noor Muhammad v. Abdul Ghani (2000 SCMR 329), and the learned Judge of the High Court also did not do so and did not consider the subsequent judgment in the case of Baud Shah v. Waris Shah (2014 SCMR 852), wherein a different was taken. The learned counsel concedes that, the date of Talb-i-Ishhad notice was not mentioned in the plaint but submits that compliance had been made with Order VI, Rule 2, 6 and 11 of the Code of Civil Procedure and the respondent (defendant in the suit) was not handicapped on account of material non-disclosure because a copy of the notice was attached with the plaint.
2. The Noor Muhammad case was a decision by a five-member bench of this Court and so too the subsequent decision in the Pir Muhammad case. Whether these two decisions are reconcilab le or not need not engage our consideration as we have 'noted another fatal defect in the case, which is the non-service of Talb-i-Ishhad notice.
Attending to our concern, the learned counsel referred to the statement of the postman, Khal Gul (PW-2), and exhibit .PW -2/1 which is a receipt, signed by the recipient of the said notice.
3. The recipient of the Talb-i-Ishhad notice was not named on the receipt or in. the postman's testimony . It is contended that he was a servant of the respondent. Neither the said receipt was put to the attorney of the defendant during cross-examination nor for that matter a single question with regard to receipt of the Talb-i-Ishhad notice, which was necessary because the said receipt was not signed by the defendant. The acknowledgement due slip, which accompanied the notice, was also not produced by the pre-emptors-plaintif fs. Therefore, the service of notice of Talb-i-Ishhad was not established and on this ground the pre-emption suit filed by the petitioners could not succeed, irrespective of the stated contradiction in the two cited five-member bench judgments of this Court. In this view of the matter no purpose will be served in remanding the case to the Appellate/Revisional Court as a necessary ingredient for the success of a pre-emption suit is absent in this case, that is to establish service of Talb- i-Ishhad when receipt of such notice is denied. Therefore, leave to appeal is declined and, consequently , this petition is dismissed. W e, however , compliment the learned counsel for his ef fort and for his research.