Mandatory proof required in pre-emption cases, rules SC
The Supreme Court has ruled that in a suit for the right of pre-emption, the date, time and place of Talb-e-Muwathibat (immediate demand) must be specifically pleaded and proved, holding that failure to fulfill this mandatory legal requirement is fatal to the claim.
The apex court set aside the judgments of the appellate court and the Peshawar High Court (PHC) and restored the trial court's decision dismissing the suit.
According to a detailed judgment, a three-member bench comprising Justice Muhammad Ali Mazhar, Justice Musarrat Hilali and Justice Shahid Bilal Hassan heard the case titled Sherzali and Others vs Saadullah Khan. The judgment was authored by Justice Hassan.
The dispute arose from the transfer of six kanals and eight marlas of land in Kohat. Saadullah had filed a pre-emption suit, claiming that upon learning about the sale of the property, he immediately exercised Talb-e-Muwathibat and subsequently completed the formalities of Talb-e-Ishhad (demand with witnesses).
However, the trial court dismissed the suit on the ground that the plaint did not specify the date and place where Talb-e-Muwathibat had allegedly been made.
In its judgment, the top court observed that the right of pre-emption is a weak and delicate right that can only be enforced through strict compliance with all statutory requirements. It emphasised that Talb-e-Muwathibat constitutes the very foundation of a pre-emption claim, making it essential for a claimant to clearly plead and prove the time, date and place at which the demand was made.
The bench held that where this fundamental requirement is absent, all subsequent proceedings lose their legal efficacy. Referring to a number of judicial precedents, the Supreme Court ruled that omission of the mandatory particulars of Talb-e-Muwathibat in the plaint amounts to a fatal defect, which cannot be cured by evidence produced at a later stage.
It further noted that the plaintiff had also failed to establish the complete chain of information.