KARAMAT NAZIR BHANDARI, J.--Petitioner on 17-12-1996 filed the suit for possession of land through exercise of right of pre-emption. The suit was contested inter alia by denying the exercise of Talbs and the receipt of notice of Talb-e-Ishhad. The issues duly framed were tried. Vide judgment dated 27-6-2000, the trial Court found all the issues in favour of the plaintiff-petitioner except Issue No,2, which dealt with the question of Talbs. The suit was dismissed. The petitioner filed an appeal and vide judgment dated 4-1-2001, the Appellate Court has set aside the decree of the trial Court and remanded the suit for fresh decision after examining the postman as Court-witness. In the opinion of the Appellate Court this was necessitated as the receipt acknowledgement due marked as (Exh.'P-3') was not available on record. The trial Court saw the photo copy of the same to conclude that evidence of postman was necessary to find whether notice of Talb-e-Ishhad has been served or not. It was contending in this civil revision that the Appellate Court has erred in holding that the plaintiff-pre-emptor was required to prove the service of notice of Talb-e-Ishhad, as under section 13(3) of Punjab Pre-emption Act, 1991 (hereinafter referred to as the Act) the pre-emptor is obliged to send a notice in writing and there is no obligation on him to prove the receipt of the notice. In support of the view taken by the trial Court reliance was placed on Muhammad Rafiq v. Ghulam Murtaza (1998 MLD 292) and Fateh Muhammad and 2 others v. Gulsher (2000 CLC 409). As the wording of section 13(3) was very clear, it was considered expedient that the view taken in above two judgments by learned Single Bench be considered by a larger Bench. Resultantly this Special Division Bench has been constituted to consider this question.
2. In today's hearing learned counsel for the petitioner has repeated the submissions that the relevant provision requires the pre-emptor to send a notice and that it is not for him to prove the service of notice. He has further referred to section 26 of the Punjab General Clauses Act, 1956, to submit that a pre-paid and properly addressed notice sent through registered post is deemed to have reached the addressee in due course of mail. He has also relied on Abdul Malik 'v.
Muhammad Latif (1999 SCMR 717) to argue that the pre-emptor cannot be knocked out on technicality.
3. On the other hand learned counsel for the respondents has supported the appellate judgment by relying on the abovenoted judgments as also by arguing that the expression "confirming his intention" in section 13(3) of the Act points out to the intention of the Legislature that notice should not only be sent but should also be shown to have been served.
4. Section 13(3) of the Act reads as follows:-- "Where a pre-emptor has made Talb-i-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-e- 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."
5. The language used in the above provision is unambiguous and admits of no other interpretation except that a pre-emptor has to make Talb-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due. In the notice he has to confirm his intention to exercise the right of pre-emption. We are unable to understand as to how the pre- emptor can be obliged to prove receipt of the notice. In this case, the petitioner proved the sending of notice by tendering in evidence the postal receipt has also the copy of the notice (Exhs.'P-1' and 'P-2'). The record shows that acknowledgement due receipt was also marked as Exh.'P-3' but according to the appellate judgment, this is not on the record of the trial Court. In our view producing in evidence acknowledgement due receipt may be justified to complete the process of transmission of notice but if in a given case it is not shown that notice has also been received, the pre-emptor cannot be non-suited on this ground. With respect, the judgments relied upon by learned counsel for the respondents namely Muhammad Rafiq v. Ghulam Murtaza (1998 MLD 292) and Mst. Aisha v. Rahim Bakhsh and others (PLD 1997 Lahore 649) are by the same learned Judge and have been delivered in limine without hearing the other side. The judgment in Fateh.
Muhammad and 2 others v. Gulsher (2000 CLC 409) heavily relies on the above judgments. These do not contain detailed reasons as to how the pre-emptor has to be obliged to prove receipt of notice, in order to succeed in a pre-emption suit.
6. Although the language of section 13(3) of the Act clinches the issues but the claim that pre- emptor must prove the receipt of notice, is full of hazards. Firstly the pre-emptor has no control once he has handed over the registered cover containing the notice to the Postal Authorities and the notice may not be delivered by the Postal Authorities either by design and may be in league with the vendee or by causes not within the control of Postal Authorities like fire, flood and other such calamaties. It would be extremely unjust and harsh to penalise a pre-emptor, who has not proved the receipt of notice in such circumstances. The provision of the General Clauses Act also points out that once a pre-paid and properly addressed envelope has been delivered, it must be presumed that it has reached the addressee in due course of mail. The wisdom contained in the Supreme Court judgment supra also confirms the above conclusion. The Supreme Court lays down that substantial compliance with the provision contained in section 13(3) of the Act is enough. It may be noticed that in case before the Supreme Court the dispute is not that the notice is not sent through registered post acknowledgement due, but that it did not contain the attestation of two witnesses, whose names were mentioned in the said notice. The Court repelled the argument that the notice being not in conformity with the provision of section 13(3) of the. Act, the pre-emptor must be non-suited.
7. There is another illegality in the appellate judgment. The learned Court has set aside the decree as a whole without discussing and recording findings on other issues and if these findings were not challenged before it, it ought to have recorded so and confirmed the findings. No basis is available as to why the trial Court has been asked to decide all the issues afresh, assuming that the evidence of the Postman as Court-witness was necessary.
8. For the above reasons we accept this civil revision and set aside the judgment and decree of the Appellate Court. The appeal brought by petitioner shall be deemed to be pending and shall now be decided afresh in the light of this judgment and in accordance with law. As difficult question of law is involved, parties are left to hear their own costs.