' The facts relevant for the decision of this revision petition are that the respondents Nos.1 and 2 filed a suit for possession in exercise of superior right of pre-emption in respect of land measuring 27 Marlas situated in Muzaffarpur, Tehsil and District Sialkot. The land was owned by the respondents Nos.3 and 4 and they sold the same to the petitioner through registered sale-deed dated 25-1-1989 for consideration of Rs,1,56,000. The petitioner appeared and filed written statement and contested the suit on legal as well as factual plain. The petitioner thereafter moved application under Order VII, Rule 11, C.P.C. For rejection of the plaint. The application was dismissed by the trial Court vide order dated 9-1-1992, which was assailed through revision petition before the District Judge but in the meanwhile section 115, C.P.C. Was amended and the revision was returned to the petitioner for presentation in this Court. The petitioner moved yet another application under Order VII, Rule 11, C.P.C. The same was contested by the plaintiff. The trial Court after hearing the arguments dismissed the same vide order dated 7-4-1994. Hence present revision petition. The petitioner has assailed both the orders in this revision petition, which was admitted to hearing and notice was issued to the respondents, who appeared through their counsel but on the final hearing nobody appeared for the respondents.Nos.3 and 4.
2. The learned counsel for the petitioner argued that the suit filed on 23-1-1990 to pre-empt sale made through registered sale-deed dated 25-1-1989 was barred by limitation. It is added that since Talabs were not made in accordance with law, therefore, the plaint was liable to be rejected.
The learned counsel in this behalf has referred to Haji Rana Muhammad Shabbir Ahmad Khan v.
Government of Punjab Province, Lahore (PLD 1994 SC 1), Anwar All v. Shah Nawaz and others (PLD 1989 Karachi 246), Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others (1991 SCMR 2001) and Malik Nazar Muhammad v. Haji Abdul Rauf and another (PLD 1992 Quetta 9).
3. The learned counsel for the respondents Nos.1 and 2--plaintiffs argued that although there was no statutory law of pre-emption in force when suit was filed yet it was competent. In this behalf, the learned counsel has referred to Ghulam Hamdani v. Muhammad Iqbal and 9 others (1993 SCMR 1083). It is added that the Talabs were made as is clear from the plaint while details and particulars were to be stated in evidence, therefore, plaint could not be rejected. The learned counsel in this behalf has referred to Mst. Zarqa and others v. Malik Haji Abdul Salam and others (1991 SCMR 1181).
It is added that the judgment in the case of Muhammad Shabbir Ahmad Khan (supra) became effective from 31-12-1993 after the suit was filed, therefore, the same is not relevant.
4. The learned counsel for the petitioner while summing up the arguments submitted that the suits of possession in exercise of superior right of pre-emption at the relevant time were governed by the Personal Law. The learned counsel in this behalf has referred to Federation of Pakistan and another v. N.-W.F.P. Government and others (PLD 1990 SC 1172) and Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 SC 901). It is added that the evidence cannot be led against the pleadings, therefore, no purpose would be served by keeping this suit alive. The same is bound to waste the time of the parties and Courts. It is added that the applications were strictly in line with the purpose of Order VII, Rule 11, C.P.C. And the trial Court failed to appreciate the same. The learned counsel in this behalf has referred to M/s. Standard Hotels (Private) Ltd. v. M/s. Rio Centre and others (1994 CLC 2413), Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878), Seven Stars Goods Transport Co. (Regd.), Karachi v. The Administrator, Karachi Municipal Corporation, Karachi (PLD 1976 Karachi 21) and Burmah Eastern Ltd. v. Burmah Eastern Employee's Union and others (PLD 1967 Dacca 190).
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record as well as precedent cases. Before proceeding any further it is worthwhile to determine the scope of Order VII, Rule 11, C.P.C. Because this would facilitate the decision in the case. It was held in the case of Muhammad Akhtar etc. (supra) that Order VII, Rule 11, C.P.C. Is not an exhaustive of all situations in which plaint can be rejected. While in the case of Seven Stars Goods Transport Co. (Regd.), Karachi (supra) it was held that the Court can reject plaint if positive prohibition can be spelt out of a legal provision. The case of Burmah Eastern Ltd. (supra) is very classic and basic, wherein Division Bench of the Dacca High Court held as under:- "The first question that strikes one is that although under Order VII, Rule 11, of the Code of Civil Procedure, it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and, in most cases, does hear lawyers on the points involved in the application. In fact, this is what has happened in the present case.
The principles involved are two-fold: In the first place, it contemplates that a still-born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation.
Secondly. It gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case.
' Order VII, Rule 11, of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of rule 11 of Order VII that it requires that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law.
' A suit may be specifically barred by law and, in such an event, the matter would come under the express terms of clause (d) of rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. This really amounts to saying that Order VII, rule 11, is not exhaustive."
' The above view was followed in the recent case of M/s. Standard Hotels (Private) Ltd. (supra).
6. Now coming to the case in hand. The suit was admittedly filed on 364th day of the sale. The argument of the learned counsel for the petitioner is that from 1-8-1986 to 29-34990 there was no statutory law in respect of the pre-emption suits, therefore, the same would be governed by Personal Law. Thereafter, he referred to Hedaya by Charles Hamilton, 1982 Edition, page 550, to argue that the suit should have been filed within a period of one or two months. The present suit, which was filed almost after a year, therefore, was hopelessly time-barred. It is added that according to Hedaya even 4 months time is not allowed to file a suit for possession through superior right of pre-emption. In this behalf, he has referred to page 551. The relevant portion reads as under:-- " Muhammad maintains that if the Shafee postpone the litigation for one month after the taking of evidence, his right drods. This is also the opinion of Ziffer; and it is related as an opinion of Aboo Yoosaf, that the right of the Shafee becomes null if he delay the litigation after the Kazee has held one Court: for, if he willingly and without alleging any excuse, omit to commence the litigation at the first Court held by the Kazee, it is a presumptive proof of his having declined it. The reasoning on which Muhammad founds his opinion in this particular is, that if the right of the Shafee was never to be invalidated by his delaying the litigation it would be very vexatious to the buyer: for he would be prevented from enjoying his property, in the apprehension of being deprived of it by the claim of the Shafee--1 have therefore (says Muhammad) limited the delay that may be admitted to one month, as being the longest allowed term of procastination'."
7. The learned counsel for the respondents-plaintiffs argued that in Personal Law there is no limitation. I am afraid this argument does not help him. It is clear from the above quotation from Hedaya that the suits should be filed immediately and Provincial Assembly has fixed the time, taking all the matters into consideration, as 4 months. Therefore, the suit filed after 4 months during the interregnum period when no statutory law was in force would be liable to be dismissed as time-barred.
8. Now coming to the other objection that since the Talabs were not made as required in Personal Law, therefore, no enforceable right of preemption came into being and hence the plaint was liable to be rejected. The precise reply of the learned counsel for the plaintiff is that in the pleadings parties are not expected to give evidence but they are supposed to incorporate only the basic facts while the particulars and details are to be given in the statements of the witnesses. There is nothing wrong with the proposition of law but same is not attracted to the facts of this case as would be seen from the later part of the judgment. Now according to the Personal Law a pre- emptor has to make following demands:--
(a) Talb-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-e-Khusumat.
The first demand is to be made in the same meeting and sitting without loss of any time while in the present to the plaint the plaintiffs when learnt about the sale they went to the land in dispute to claim superior right of pre-emption. This is not Talb-i-Muwathibat in accordance with law. In this behalf, reference can be made to Muhammad Ashraf v. Muhammad Tahir and 6 others (1990 MLD 2399) whereafter examining the available law it was held as under:-- "10. It will be seen from the above admissions that `Talb-e-Mowasibae was made immediately after the appellant came to know about this deal. According to Muslim Law by Saksena, `Talb-e- Mowasibae or immediate demand literally means demand of jumping, by which preemptor should make immediate assertion of his right on getting the information of the transfer of the property.
The expression clearly shows that the right of pre-emption must be asserted with the utmost promptitude. The case of Monajal Huq v. Shafiullah and others, reported in PLD 1964 Dacca 640, is an important authority on this subject, wherein it was held:- 'A person entitled to pre-emption must make the immediate claim to the right of pre-emption called Talab-e-Mowasibat as soon as the fact of sale is known to him. The right is lost if there be any delay in claiming it'."
' After examining the available case-law on this point Idris, J. Observed as follows:-- "In the present case, plaintiff did not make the immediate demand, that is, he did not perform the ceremony of Talab-e-Mowasibat immediately on coming to know of the sale in the Registration Office, but he went to the land at the distance of 2-1/2 miles and there made the claim. As the Talab-e-Mowasibat was not made instantly on coming to know of the sale, the right of pre- emption was lost."
11. In Smt. Sundri Bai v. Ghulam Hussain, reported in 1982. CLC 2441, Saiduzzaman Siddiqui, J., made this subject more clear in the following words:--- " 'Talab-e-Mawasibat" is defined as the immediate claim. The `Shafee' must make this claim the moment he learns of the sale of the property and any delay in asserting this claim will invalidate the right of `Shafa' for the right of `Shafa' is but of feeble nature. The Prophet (peace be upon him) has said 'the right of Shafa is established in him who prefers his claim without delay (see Hedaya by Hamilton at page 550). The respondent has not explained the delay of about 1-1/2 hours in making the Talab-e-Mowasibat. It has come in the evidence that the appellant was residing on the 1st floor while the respondent was on the ground floor of the same building. In these circumstances the delay of 1-1/2 hours in making the first demand (Talab-e-Mowasibat) was fatal to the claim of `Shafa' asserted by the respondent.)"
' The issue is clinched by reference to the case of Zafar All v. Zainul Abidin and another (1992 SCMR 1886), where the Hon'ble Supreme held as under:-- "The judgment in the Quetta case itself shows that the Shariat Appellate Bench of this Court had in the case of Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 emphasized that as soon as the plaintiff learns about the sale he would 'without any delay immediately declare that he would exercise the right of Shufa against the said sale.' It was emphasized that this declaration shall have to be made before the dispersal of the Majlis in which the plaintiff gains the knowledge about the sale. Thus, before that moment if the plaintiff wants to gain some more information it might be possible but not thereafter by making applications for obtaining copies or making inquiries. There is a practical side to this aspect of the law, namely, that by making `Talb' the plaintiff will not be losing anything while not making the `Talb'. On the one hand he would be losing the pre-emptri hg t to and on the other he would delay first essential notice about his intention by way of `Talb-i-Muwathibar. This view of the law also gets support from further discussion on the subject in the case of Malik Said Kamal. For example, after noticing some aspects of variance on the question regarding at what stage in the same Majlis the first Talb should be made, it was held as follows:- {{URDU TEXT}} ' It was held in the case of Muhammad Ismail Qureshi and another v. Government of N.-W.F.P. And another (1992 PSC 75) that right of Shufa is notionally acquired as soon as the title in property changed hands and it is fully secured the moment a pre-emptor makes a Talab-e-Mowasibat, therefore, Talb-e-Mowasibat is the foundation of the claim. In the absence of the legal formalities the claim is defeated. Reference can be made to Rujjub Ali Chopedar v. Chundi Churn Bhadra and others (17 Cal. 543), Said Muhammad Shah v. Ghulam Hussain (1993 CLC 105) and Samundar Khan and 2 others v. All Zaman (PLD 1984 Peshawar 12). The matter is concluded by the judgment of the Hon'ble Supreme Court in the case of Mst. Safia Begum v. Ibrahim and 4 others (PLD 1989 SC 314), wherein it was held that:--
9. Coming now to the main points raised in the other petition, it is to be observed right away that as held in the Said Kamal's case and also reiterated in subsequent cases including that of Sultan All Khan PLD 1988 Pesh. 111 from the Peshawar High Court, the failure to make the Talabs at proper times extinguishes the so-called right of pre-emption. Hence it is not a part of procedural law but falls in the substantive field--rather an integral part of the right of Shufa---this term has been distinguished from 'pre-emption', in the case of Said Kamal."
This suit having not been filed within limitation and Talb-e-Muwathibat having not been made as required under Personal Law, therefore, the plaint was liable to be rejected. I proposed to the learned counsel that if this suit is decided after recording evidence how the point of limitation would improve but he has nothing to comment. The same is the position of Talb-e-Muwathibat.
The plaintiffs although have given in the detail the manner in which the Talabs were made but doing so admitted in categorical words that after learning about the sale they went to the land to make Talb-e-Muwathibat. They, therefore, would not be allowed to lead evidence inconsistence with their clear contention in the plaint. All these facts lead to irresistible conclusion that no useful purpose, whatsoever, would be served by keeping the suit pending. The plaint was liable to be rejected in view of the rule laid down in the cases of Muhammad Akhtar etc. And Burmah Eastern Ltd. (supra). In this behalf, reference can also be made to the cases of Latif Ahmad v. Mst. Rashidan (1992 CLC 1173) and Haji Muhammad and another v. Government of the Punjab (1994 CLC 1248).
9. The upshot of the above discussion is that the trial Court has failed to exercise the jurisdiction in accordance with law and precedents of superior Courts, therefore, this petition is accepted and the impugned order is set aside. The result is that the plaint is rejected.