' Vide a Mutation No,404 attested on 25-3-199-7 the respondent No,1 purchased the suit-land. On 11-7-1997 the petitioner filed a suit for possession of the said land by pre-emption. According to para.3 of the plaint the petitioner acquired knowledge of the sale on 25-6-1997 and made Talb-e- Mwasabit in the presence of persons mentioned in the said para. In para. 4 it was mentioned that 5/6 days thereafter the petitioner got the copie3 of the relevant records and issued a notice under registered cover acknowledgement due; the respondent refused to receive the notice. A copy of the notice alongwith envelope with report of refusal; postal receipt and A.D. Receipt were annexed with the plaint. A written statement was filed by the respondent wherein he raised some preliminary objection and denied the said allegation including the superior right of the petitioneRs, On 3-1-1998 an application was filed under Order VII, rule 11, Civil Procedure Code stating that according to the copy of the notice it was issued on 3-7-1991 i,e, 8 days after making of the Talb-e- Mwasabit on 25-6-1997 and since the notice is to be issued immediately after the said first Talb the suit is barred by law and the plaint is liable to be rejected. The application was resisted. The learned trial Court rejected the application vide order dated 30-3-1998. The respondent No,1 filed a revision petition which was heard by a learned Additional District Judge, Toba Tek Singh who allowed the same and rejected the plaint vide order dated 20-11-1998.
2. This case was admitted to hearing on 24-2-1999. On 22-11-2000 both the learned counsel were present but the case was adjourned on the request of the learned counsel for the respondent. It was then listed on 5-12-2000 when none appeared and it was adjourned to 19-12-2000. Thereafter the case has been listed today. No one had turned up for the petitioner. While Mr. Muhammad Sharif-I, Advocate is present for respondent No,
1. Having gone through the records appended with this Writ Petition I am not inclined to dismiss it for non-prosecution.
3. I have already referred to the material contents of the plaint above. Now under section 13(3) of the Punjab Pre-emption Act, 1991 the notice of Talb-e-Ashhad is to be sent in the manner prescribed as soon after making of Talb-e-Mwasibat as possible but not later than 2 weeks from the date of knowledge. In the present case the knowledge was acquired on 25-6-1997 and the notice was issued on 3-7-1997. It will thus be seen that the notice was issued not later than 2 weeks of the making of the first Talb and acquisition of the knowledge. Now the learned Additional District Judge has observed in para.6 of the impugned judgment that in case the said section 13(3) is strictly interpreted pre-emptor has to give the notice of Talb-e-Ashhad as soon as possible without wasting a single moment. According to the learned Additional District Judge since the petitioner has not given notice as soon as possible after making Talb-e-Mwasabit his right stands extinguished.
4. Learned counsel for the respondent cites the case of Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCM R 1780 to support the impugned judgment of the learned Additional District Judge. Having examined the said judgment I find that although the learned Additional District Judge has not referred to the same in the impugned judgment, the words used by him are same as used in the said judgment. Now the said judgment in the case of Mir Sahib Khan came up for consideration before Honourable Supreme Court of Pakistan in the case of Muhammad Gul v. Muhammad Afzal 1999 SCM R 724. The matter was considered by a Bench comprising 3 Honourable Judges. The leading opinion was delivered by Mr. Justice Saeeduzzaman Siddiqui (as his Lordship then was)
After reproducing the said words which were being relied upon by the appellant before their Lordships, it was thus observed at pages 727 and 728 of the report "it is however, to be noted that the above observation only shows that if the provisions of section 13(3) are to be strictly interpreted then this result would follow. This observation, however, does not support the contention of the learned counsel for the appellant that this Court interpreted the provisions of section 13 of. N.-W.F.P.
Pre-emption Act in the manner mentioned above. From the facts stated in that case it is quiet obvious that the plaintiff in that case had contended before the Court that he sent a notice on 3-8- 1988 bui he failed to establish his allegation regarding sending of the notice relating to Talb-e- Ashhad and it is for this reason that this Court refused to grant leave against the order of the High Court". It may be noted that in the said case of Muhammad Gul the notice was sent within 10 days of the Talb-e-Mwasabit whereas in the present case the notice was sent after 8 days of Talb-e- Mwasabit. In a later judgment delivered by a Bench comprising 3 Honourable Judges in the case of Sher Khan v. Baz Khan and others 1999 SCM R 2338 where both the Mir Sahib Khan and also of Muhammad Gul came under consideration, the view expressed in the case of Muhammad Gui was confirmed.
5. In view of the above discussion I find that the learned Additional District Judge has acted without lawful authority while rejecting the plaint of the petitioner. This writ petition accordingly is allowed and the order dated 20-4-1998 of learned Additional District Judge, Toba Tek Singh rejecting the plaint of the petitioner is set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending before the learned trial Court i,e, Senior Civil Judge, Toba Tek Singh. A copy of this order be immediately remitted to the learned Senior Civil Judge, Toba Tek Singh, who shall requisition the records and after summoning the parties proceed to record evidence of the parties on the issues already framed in the case on 30-3-1998 and thereafter to decide the said issue and consequently the suit in accordance with law. No orders as to costs.