' Ghulam Rasool, the petitioner herein, filed a suit before the Civil Court at Kohat in the year 1993 and asked for the grant of a pre-emption decree. It is averred in the plaint that the defendants- respondents purchased a vacant plot on the basis of a registered sale-deed dated 19-5-1992.
Plaintiff has based his superior right of pre-emption on the qualifications of contiguity and participation in amenities and appendages. He has stated that an inflated amount has been mentioned in the sale-deed in order to defeat the right of pre-emption. In the written statement the respondents resisted the suit on various legal and factual pleas, inter alia, contending therein that the suit of the plaintiff-petitioner is barred by time. The respondents also filed an application under Order 7, Rule 11, C.P.0 for dismissal of the suit on the ground of limitation which was resisted by the petitioner by filing a replication. The learned trial Court after hearing the arguments of the learned. Counsel for the parties on the said application dismissed the suit of the plaintiff-petitioner by holding that the suit of the plaintiff is not within time through the impugned judgment. The appeal preferred by the plaintiff-petitioner before the District Judge, Kohat was dismissed on 22-1- 1995. Hence the instant revision petition under section 115, C.P.O .
2. The learned counsel for the petitioner vehemently argued that the Courts below have legally erred in declaring the suit as time-barred. He further argued that notice under section 32 of the N.- W.F.P. Pre-emption Act, 1987 was neither advertised in the newspaper nor any such notice was served on the petitioner which is mandatory in nature. He lastly submitted that the suit of the plaintiff was within time because the same was instituted from the date of knowledge of sale in question. That the period of 120 days is to be counted from the date of knowledge. He also argued that the matter involves mixed question of law and facts it was incumbant upon the Court to provide opportunity to the petitioner to lead evidence in support of his claim.
' Counsel for the respondents resisted the contentions of the petitioner's counsel by stating that the suit is hopelessly time-barred in that the provisions of section 31 of the Act ibid are applicable to the facts of the instant case and that the provisions of section 32 of the N.-W.F.P. Pre-emption Act, 1987 are not attracted because the sale was a registered one which itself is a notice to the public and no other notice is required in the matter. He further argued that in the instant case the "Talabs" as required by section 13 of the Act (supra) have not been complied with by the petitioner, therefore, the case of the petitioner cannot proceed.
3. I considered these submissions in the light of relevant law. I have also carefully perused the dictums laid down in 1995 CLC 541, 729 and 744 as well as 1994 CLC 1730. It would be proper to reproduce the relevant sections: "12. Notice of intention to sell.--(1) where any person proposes to sell any immovable property in respect of which a right of pre-emption exists, he may give notice to all such persons having such right of the price at which he is willing to sell the property.
(2) The notice under subsection (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be, deemed sufficiently given if it be struck upon the main entrance of a mosque and of any other public place of the village, city or place where the property is situated.
13. Demand of Pre-emption:--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--
(a) Talb-i-Muwathibat:
(b) Talb-i-Ishhad; and
(c) Talb-e-Khusumat. Explantions.
I. "Talb-i-Muwathibat" means immediate demand by a pre-emptor in the siting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre- emption II. "Talb-i-Ishhad" means demand by establishing evidence. III. "Talb-i-Khusumat" means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) Whete a pre-emptor has made Talb-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 acknowledgement due to the vendees, confirming his intention to exercise the right of pre-emption: ' 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 Talb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-iMuwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
' Section 31. Limitation.--The period of limitation for a suit to enforce a right of pre-emption under this Act shall be 120 days from the date:--
(a) of the registration of the sale-deed; or
(b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c).
' Section 32. Notice.--(1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.
(2) The notice under subsection (1) shall be deemed sufficiently given if it be struck upon the main entrance of a mosque and on any other public place of the village, city or place where the property is situated: ' Provided that if the property is situaed in a city, the notice shall be given through a newspaper having large circulation in such city.
(3) The charges for the notice under subsection (2) shall be recovered from the vendee by the registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutatioh.
4. Section 12 is with regard to notice of intention to sell whereby procedure and method of notice is laid down while section 13 (3) provides two weeks time for Talb-i-Ishhad from the date of notice under section 32 or knowledge or whatever is earlier. Section 32 is regarding notice by the Registrar registering the sale-deed or the Revenue Officer attesting the mutation of sale, shall within two weeks of the registration or attestation in either case give public notice in the manner and procedure provided in subsections (2) and (3).
5. After perusal of the above provisions if it is crystal clear that notice under section 12 by the seller and section 32 by the Registrar have not been given and in absence of such compliance by the concerned, ascertainment of time period for the purpose of Talb-i-Muwathibat and Talb-i-Ishhad required through probe and without evidence conclusion is not possible hence rejection of plaint under Order 7 Rule 11, C.P.C. In the circumstances is not called for. 1994 CLC A Peshawar, 1730 and 1995 CLC Peshawar 541, 729 and 744 indicate that the above said provisions were not perhaps agitated before their Lordships while arguing the pre-emption cases. It is, therefore, directed for future guidance that the Registrar registering the sale document or the Revenue Officer attesting a mutation shall strictly follow the provisions of section 32 and the trial Court while adjudicating the suits must keep in mind the application of sections 12 and 32 of the Act ibid and avoid rejection of plaint under Order 7, Rule 11, C.P.C. In like cases.
6. It is, however, noted- in the case in hand that the petitioner despite making the demands of "Talabs" after lapse of one year and seven months still he failed to mention date of knowledge of sale and the date of "Talib-i-Muwathibat" and also that he did not mention where and in what manner and in whose presence he declared his such intention. There is no single word in the plaint regarding the said salient features and mandatory requirements given thereof in the relevant provision as laid down in 1994 CLC Peshawar 1730. The petitioner should have been alert and vigilant of the situation and he should have filed the plaint properly in the light of section 13 (ibid). In absence of such requirements on the part of the plaintiff the cause of action and locus standi of the petitioner is not conspicuous, therefore, remanding the case on the point of limitation in view of above observations on sections 12 and 32 of the Act would be a futile exercise and would serve no purpose as the compliance of section 13 of the Act ibid has not been strictly made.
7. In view of what has been stated above, the judgments and decrees of both the Courts below are maintained but on different grounds and the revision petition being short of substance is .Dismissed. No order as to costs.