' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal is by leave of the Court against the judgment dated September 18, 1997 passed by Lahore High Court, Lahore whereby Civil Revision No,799 of 1997 filed by the appellant has been dismissed.
2. Precisely stating facts of the case are that appellant filed a suit against respondent for possession through pre-emption of land measuring 51 Knals, 2 Marlas situated in Mouza Wandi, Tehsil and District Gujranwala. Learned Civil Judge vide order dated September 28, 1995 decreed the suit subject to payment of Rs,3,00,000 to be the sale price. In appeal learned Additional District Judge reversed the finding of trial Court holding that Talabs i.e, Talab-e-Muwathibat and Talab-i- Ishhad being prerequisite for filing suit for pre-emption have not been fulfilled. As a result whereof suit filed by appellant was dismissed. Learned Lahore High Court in Civil Revision instituted by appellant upheld the order of Additional District Judge vide impugned order.
3. Mr. Gul Zarin Kiani and Ch. Mushtaq Ahmad Khan assisted by Ch. Muzammal Khan, Advocates represented the parties respectively.
4. Learned counsel contended that vide impugned judgment learned High. Court has non-suited the appellant firstly for the reason that Talab-e-Muwathibat has not been established in view of the judgments referred to therein and secondly the notice of Talab-i-Ishhad was not served upon the respondent as it was not sent to Saudi Arabia where as per admission of appellant in cross- examination he was living at that time and endorsed the conclusions drawn by the Appellate Court that both the Talabs were not proved by the appellant and on reaching such conclusion the Appellate Court did not misread any part of evidence nor any misreading has been pointed out in the course of hearing of the petition. To strengthen his argument he referred to copies of the notices duly issued by the appellant to respondent on the address mentioned in the sale deed dated 7-3-1993 but the Appellate Court declined to take them into consideration by over-looking the judgments in the cases Rashid Ahmad v. Muhammad Khan PLD 1961 BJ 76; Hakim Khan v.
Aurang Zaib and another PLD 1985 Lahore 1170; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 882, Manga v. Bashir Ahmad Khan and 45 others 1992 MLD AJK (SC) 2170; Muhammad Siddique and 2 others v. Faqir Muhammad and another 1993 CLC 1158; Ghulam Hamdani v. Muhammad Iqbal and 9 others 1993 SCM R 1083 and Mian Tajammul Hussain and 3 others v. State Life Insurance Corporation of Pakistan 1993 SCM R 1137.
5. Conversely learned counsel for respondent argued that both the Talabs are required to be proved as a question of fact. No doubt under section 13 of the Punjab Pre-Emption Act, 1991 (hereinafter referred to as the "Act") Talab-e-Muwathibat has to be made orally and judicial consensus in this behalf is that it should be made by a pre-emptor without loss of time on coming to know about sale of the said property. But as far as Talab-i-Ishhad is concerned it has to be made by sending registered notice to the vendee as required under section 13(3) of the Act and its conditions shall be proved if need be according to the provisions of Article 75 of Qanun-e- Shahadat Order, 1984.
6. We have heard learned counsel and have also carefully examined the impugned judgment. As per section 13 of the Act a pre-emptor is required to make Talabs (demands to assert his right of pre-emption from extinguishment. To enforce such right two Talabs i.e, Talb-i-Muwathibat and Talab-i-Ishhad are required to be made essentially). Section 13(1) of the Act does not provide the set procedure for making of Talb-i-Muwathibat except stressing that it should be made immediately without wasting time in making of mind to enforce the right or otherwise because under Explanation attached to subsection (1) of section 13 of the Act emphasis should be made to perform the Talab in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of preemption. Earlier it was the opinion of this Court in the case of Shafi Muhammad v. Muhammad Hazar Khan and others 1996 SCM R 346 that the plaint may contain a statement of fact to indicate the place where Talb-i-Muwathibat was made by petitioner/pre-emption. However, subsequently in another judgment in the case of Amir Jan and 3 others v. Haji Ghulam PLD 1997 SC 883 this Court improved upon its earlier observations by explaining that requirement of law would be fully met if it was alleged in the pleading that after having coming to know of sale, pre-emptor declared his intention to pre-empt such sale, material fact must be proved at trial through evidence on issue framed in that regard. The evidence to be led need not be disclosed in the plaint. However, if the plaintiff fails to mention the material fact that he has made Talb-i-Muwathibat on having gained knowledge of the sale would be debarred from leading evidence on the material fact of Talb-iMuwathibat. The view expressed in this judgment is in consonance with law of pleadings according to which plaintiff is not obliged to make reference of the evidence to be led by him except noting a particular fact, which is to be proved, subsequently by leading evidence. Additional District Judge and learned High Court in the impugned order, on facts have concurred that appellant has not proved that Talab-i-Mawathibat was made by him. Ordinarily re-appraisal of question of fact is not undertaken by this Court c particularly when learned High Court has re-affirmed/concurred with the findings recorded either by the Appellate or trial Court in view of the recognised principle of appreciation of evidence unless it is demonstrated before this Court that the impugned order suffers from apparent misreading or non-reading of evidence by any of the forums below. We may add here that while appreciating evidence possibility of forming two views cannot be overruled depending upon the nature of evidence on the subject.
7. Next most important aspect of the instant case is as to whether appellant has succeeded in establishing that Talab-i-Ishhad was performed by him according to section 13(3) of the Act which is reproduced hereinbelow:-- "13. Demand of pre-emption.--(1)
(2)
(3) Where a pre-emptor has made Talab-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talab-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre- emption:"
' Provided that in areas owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talab-i-Ishhad in the presence of two truthful witnesses.
(4) Learned Additional District Judge while attending to above proposition has observed that notice required to be sent duly attested by truthful witnesses under registered cover acknowledgement due has not been proved. Mr. Gul Zarin Kiani learned Advocate Supreme Court candidly conceded that the witnesses produced by appellant who have allegedly signed the notice sent to respondent at his address mentioned in the sale deed as well as to Mubarik who was Mutabir Mushtari have not either referred or identified their signatures on it. It was also conceded by him that Muhammad Yusuf, attorney of respondent Muhammad Rafique who is also his relative being father-in-law did not refer in his evidence about factum of sending of notice. However, his contention was that as the copies of the notices allegedly addressed to respondent Muhammad Rafique and Mubarik were made available on the file alongwith plaint, therefore, Additional District Judge/Appellate Court had a duty to accept these notices in compliance of provisions of section 13(3) of the Act.
8. We are afraid the argument put forward by the learned counsel is not acceptable because merely a document being relied by a party is required to be proved either by leading primary or secondary evidence in view of facts of each case. The judgments relied upon by the learned counsel are not helpful to him because in the case of Rashid Ahmad (supra) altogether different question relating to power of review of a Judge and rejection of the plaint was discussed. In the case of Hakim Khan (ibid) question for consideration before a learned Single Judge of Lahore High Court was whether failure on the part of Judge to sign or initial documents placed on record does not render documents inadmissible in evidence. In this context it was observed that omission to mark documents produced by the parties is a mere irregularity. This principle is not applicable in the instant case because appellant had not pleaded either before learned High Court, Additional District Judge or before us that the document was duly proved but neither it was initialed or signed, therefore, it cannot be taken into consideration. Similar principle was discussed in the case of Muhammad Siddique and 2 others (supra). In the case of Manga (ibid) a learned Bench of Supreme Court of AJ&K while interpreting provisions of Order XIII Rule 4 C.P.C. Opined that attested copies of documents brought on record if were not exhibited would not debar the Court from reading the same in evidence. Admittedly in the case in hand no attested copies of the documents i.e, notices has been brought on record nor it was the case of the appellant. In the case of Khurshid Ali and 2 others (ibid) this Court held as under:- ' "It is incorrect to think now under an Islamic dispensation that the Courts are only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the contesting litigants, and one who commits a mistake in procedural matters should be deprived of the right claimed; even if he is entitled to it. This Court has not approved of such-like practice. (See Muhammad Azam v. Muhammad Iqbal, PLD 1984 SC 95). In this case even if the application had not been pressed "so-called" if it was necessary for just decision of the case, as held by the High Court (to summon the material relied,upon by the appellant's side), it should have been summoned and treated as evidence in the matter without any formalities. And mere failure to exhibit a document formally would not make any difference.
' In the light of what has been stated above, the error having been committed by the trial Court in this case is not summoning the original register and other material evidence for just decision of the case, there is no alternative but to allow this appeal and remand the case to the trial for fresh decision. The application made by the applicant for summoning the record including the register is allowed. The said material shall be recognitioned and produced in the Court as soon as possible.
The parties shall be afforded a further opportunity to adduce additional evidence if necessary."
' In our considered opinion even above well-considered principle laid down by this Court for advancing cause of justice has not advanced the case of the appellant. Next judgment relied upon by the appellant's counsel in the case of Ghulam Hamdani (ibid) has no nexus with the proposition under consideration because in this case question of mentioning about performance of Talabs in the pleadings was under consideration and in this context it was held that as appellant has pleaded Talabs in the plaint and had based the right of pre-emption on contiguity and participation in immunities and appendages such as the right of way, therefore, in this context it was held that this was sufficient to complete the pleadings. In the case of Mian Tajammal Hussain and 3 others (supra) question for consideration was as to whether letter dated 24th September 1977 written by appellant No,1 a Director of the Company addressed to the Chairman of the respondent-Corporation and holding that it amounted to admission of liability can be given the status of admissible evidence under the law or otherwise. In this context it was held that as this letter was filed by the appellant and the same was on record although admission or denial of document had not taken place the learned Single Judge during arguments noticed this letter and confronted it to the Advocate of the appellant who admitted it to be genuine and correct, therefore, on account of such admission it was held that notwithstanding the fact that it was not exhibited does not exclude the document from taking it into consideration. It may be noted that with reference to the facts of the case in hand we did inquire from Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for respondent whether on behalf of the respondent he accepts notice dated 11-4-1993, he categorically denied its acceptance and stated that respondent had no knowledge about it because it was never sent to him nor its original was produced in Court. He further stated that during the days when allegedly the notice was sent by appellant to respondent the latter was in Saudi Arabia and this fact was in the knowledge of former as it has been admitted by him during his cross-examination before the trial Court.
' Be that as it may, in view of the denial of respondent's counsel no further discussion is called for except making observation that this judgment as well is not applicable on the facts of instant case.
9. Learned counsel for the respondent on the other hand contended that as appellant has failed to make Talabs as per requirement of subsection (3) of section 13 of the Act, therefore, the right of appellant stood extinguished. Reference has been made by him to the judgments in the case of Muhammad Rauf Khan v. Mir Sahib Khan 1992 M LD 1 and Azizul Haque v. Muhammad Aslam and others PLD 1996 SC 250. Relevant para. Therefrom reads as under:-- "4. A perusal of subsection (3) of section 13 of the Punjab Pre-Emption Act would reveal that Talab- i-Ishhad can be made orally in the presence of two truthful witnesses if postal facilities for sending a written notice under registered cover acknowledgement due, are not available in the area. The respondents have placed on record (Part II of the Paper Book) a certificate issued by the District Superintendent Post Office, Toba Tek Singh which shows that a Branch Post Office is functioning in Chak No,178/G.B., Tehsil Gojra, District Toba Tek Singh, since 1-7-1927, the disputed land is also in the said Chak and the sales pre-empted by the petitioner had taken place in the year 1989. This means that the postal facilities were available to the petitioner for sending the requisite notice after the said sales had been affected. Admittedly, he did not do so. The second alternative i.e, the making of Talab-i-Ishhad in the presence of two truthful witnesses was therefore, not available to him; and even if he had made Talab-i-Ishhad, accordingly it was of no avail to him."
' A perusal of findings recorded by learned Additional District Judge/Appellate Court indicates that appellant failed to prove Talab-i-Ishhad by bringing on record the original notice, envelope containing the same having correct address of the respondent where he was residing at the relevant time. We consider it proper to reproduce hereinbelow findings of the Appellate Court:-- ' This brings me to Talb-e-Ishhad. The respondent claims having performed Talab-e-Ishhad by sending registered notices to the appellant and his representative Mubarik Ali. The said notice is claimed to be signed by P.W.1 Ghulam Haider and P.W.2 Inayat Ullah. Both these P.Ws in their evidence claimed having signed the said notices. The respondent tendered in evidence Exh.P.6 and Exh.P.7 which are postal receipts of these notices and Exh.P.8 which is registered A.D. Receipt.
8. As mentioned above the appellant had denied the receipt of such notice. This brings so it was incumbent upon the respondent to have tendered and proved in evidence a copy of the acknowledge which was sent to the appellant. But this was not done. Additionally, the appellant at the time of sending of notice was living in Saudi Arabia but no notice was sent to him on his address in Saudi Arabia. However, the learned lower Court by holding that Talab-e-Ishhad had been duly performed was swa yed by an un served registered envelope available on the file. It was held that envelope available on the record was sent to the appellant concerning Talab-e-Ishhad but the latter did not receive the same. Shockingly enough, the envelope available on the record is in regard to the summoning of the appellant in the suit and not in regard to the Talab-e-Ishhad. In this view of the matter the respondent had failed to prove Talb-eIshhad."
The above finding of fact has been re-affirmed by learned High Court in its impugned judgment.
Thus, we are inclined to hold that to prove contents of documents claimant is bound to produce primary or secondary evidence as per Articles 72, 75, 78 and 79 of Qanun-e-Shahadat Order, 1984 unless execution of the same is admitted by the opponent. In this case neither execution of notice has been proved nor the respondent has admitted so in the written statement or during trial of the case or even before us. It is further to be added that if a document has been produced on record according to the provisions of Qanun-e-Shahadat Order, 1984 referred to hereinabove but on account of an omission on the part of Presiding Officer that exhibit number had not been marked on it or the document had not been signed and for such reason it would become admissible and the Court can consider it admissible evidence but unfortunately this principle of law is also not attracted. As far as compliance of provisions of section 13(3) of the Act is concerned it is mandatory in nature because performance of Talab-i-Ishhad has been considered to be one of the most important conditions for enforcing right of pre-emption and if a notice has not been sent as per the requirement of law no other conclusion can be drawn except that Talab-i-Ishhad has not been made, as a result whereof right of appellant shall be deemed to have extinguished.
10. Learned counsel for appellant also canvassed that Additional District Judge as well as learned High Court have not correctly assessed that Talab-eMuwathibat has been performed, therefore, according to him to this extent the findings of the Courts are incorrect. Although in the paras supra we have already confirmed the findings of learned High Court and Appellate Court in this behalf but if for the sake of arguments accepting the contention of appellant we were to hold that Talab- i-Muwathibat has been duly performed but even then we cannot give any relief to appellant because in above discussion we have held that Talab-i-Ishhad has not been proved, therefore, suit is liable to be dismissed because it cannot be decreed if one, out of two Talabs had not been proved as settled law is that both the Talabs had to be proved simuitaneously. In forming this opinion we are fortified by the judgments in the cases of Nazir Ahmad v King-Emperor AIR 1936 PC 253; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Mrs. Dino Manekji Chinoy and 8 others v.
Muhammad Matin PLD 1983 SC 693; Muhammad Amin and 3 others v. Gulab and another 1993 CLC 98; Said Muhammad Shah v. Ghulam Hussain 1993 CLC 105 and Suba Khan v. Muhammad Bashir 1993 M LD 1958.
11. Examining the case from any angle leaves no doubt to hold that for want of necessary Talabs i.e, Talab-i-Muwathibat and Talab-i-Ishhad the right of appellant stood extinguished and the learned High Court rightly declined to grant relief to appellant.
' For the aforesaid reasons the appeal is dismissed leaving the parties to bear their own costs.