1. ' In this case, the suit, filed on 6-1-1990 by the petitioner, against respondent No,3, has been dismissed by the learned Additional District Judge in appeal vide judgment and decree dated 28- 5-1992. An application under Order VII, Rule 11, C.P.C. was filed in the suit by respondent No,3 seeking rejection of the plaint on the ground that the provisions of section 15 of the Punjab Pre-emption Act, 1913 have been declared to be unenforceable in law. Reliance was placed on cases reported as PLD 1986 SC 360 and PLD 1990 SC 865. Learned Civil Judge has dismissed this application vide order dated 24-2 1992. It has been held by the learned trial Court that the application is misconceived.
2. This order has been challenged by respondent No,3 in revision before the learned Additional District Judge, Chunian, which has been accepted and the impugned order has been passed whereby the plaint has been rejected by the learned lower revisional Court. This order has been challenged in this writ petition.
2. It has been contended in the memo. of the writ petition that the suit was competent under the provisions of Islamic Law in view of the law laid down in case of Mst. Safia Begum v. Muhammad Ibrahim and 4 others PLD 1989 SC 314, therefore, the plaint could not have been rejected. It is further contended that the suit could not have been dismissed as per provisions of section 35(1) of the Punjab Pre-emption Act IX of 1991, and, therefore, the impugned judgment and decree rendered by the learned revisional Court is erroneous in law.
3. ' As against the above contentions raised in memo. of writ petition Mushtaq Ahmad, Advocate, learned counsel for respondents has argued that even if it is assumed that the suit could proceed in accordance with the provisions of Islamic law, event then, there being no allegations in the plaint regarding making of Talb-i-Muwathibat, the pre-emptor did not acquire enforcible superior right of pre-emption on the basis whereof the suit could have proceeded and as there was no cause of action in favour of the plaintiff, learned first Appellate Court has rightly rejected the plaint.
3. I have considered the arguments addressed by the learned counsel, and have also gone through the case-law mentioned in the memo. of writ petition and have also perused the plaint.
4. Regarding making of Talabs, plaintiff in para.6 of the plaint has contended as {{URDU TEXXT}} The aforementioned reproduction clearly shows that the allegations of making of Talb-i- Muwathibat is not there, although making of Talb-i-Ishhad is mentioned in this paragraph of the plaint. It is an established principle of law that without making of Talb-i-Muwathibat, making of Talb-i-Ishhad does not make any right of pre-emption as enforcible in law, inasmuch as, making of Talb-i-Muwathibat is a precondition for making of other two Talabs, namely Talb-i-Ishhad and Talb-i-Khasumat. In case, Talb-i-Muwathibat is not made, result is that superior right of pre- emption does not come into existence at all and a such, the pre-emptor, who is not alleged to have made Talb-i Muwathibat, cannot be said to have acquired superior right of pre-emption.
5. Reliance in this behalf can be placed on case Zafar Ali v. Zainul Abidin and another (1992 SCM R 1886), wherein at page 1890, it has been held as under:-- "But as held in Ghulam Jilani v. Ghulam Muhammad 1991 SCM R 2001 the second Talb, is by way of confirmation of the first Talb. If there is no first Talb there can be no confirmation thereof.
6. Accordingly, for this reason alone there was no valid second Talb.
7. ' This reason is in addition to the other reason regarding two truthful witnesses as well as their having attested the notice."
8. In view of the above, as according to the plaint, Talb-i-Muwathibat has not been made by the plaintiff, the plaint does not disclose any cause of action as such, the suit cannot proceed.
9. ' Resultantly, this writ petition has no force, the same is dismissed in limine, and the order of rejection of plaint passed by the learned Additional District Judge is maintained for the reasons referred to above.