The date, time and place of Talb-e-Muwathibat (immediate demand) must be specifically pleaded and proven.
ISLAMABAD:
The Supreme Court has held that in a suit for right of pre-emption, the date, time and place of Talb-e-Muwathibat (immediate demand) must be specifically pleaded and proven, holding that failure to comply with this mandatory legal requirement is fatal to the claim.
The apex court set aside the judgments of the Court of Appeal 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 versus Saadullah Khan. The judgment was written by Judge Hassan.
The dispute arose over the transfer of six kanals and eight marlas of land in Kohat. Saadullah had filed a pre-emption suit, claiming that after learning of the sale of the property, he immediately exercised Talb-e-Muwathibat and subsequently completed the formalities of Talb-e-Ishhad (petition with witnesses).
However, the trial court dismissed the complaint on the ground that the complaint did not specify the date and place where Talb-e-Muwathibat was said to have taken place.
In its judgment, the highest court observed that the right of pre-emption is a weak and delicate right which can only be enforced through strict compliance with all legal requirements. She pointed out that Talb-e-Muwathibat forms the very basis of a pre-emption claim, making it essential for a claimant to clearly plead and prove the time, date and place at which the claim was made.
The judiciary considered that in the absence of this fundamental requirement, all subsequent procedures lose their legal effectiveness. Referring to a number of judicial precedents, the Supreme Court held that omission of mandatory information about Talb-e-Muwathibat in the complaint amounts to a fatal flaw, which cannot be corrected by evidence produced at a later stage.
He further noted that the complainant had also failed to establish the complete chain of information.
