IN THE SUPREME COURT OF PAKISTAN  
 
(Review Jurisdiction) 
 
 
 
Present: 
 
Mr. Justice Umar Ata Bandial 
 
Mr. Justice Qazi Faez Isa 
 
CIVIL REVIEW PETITION NO.147 OF 2016 
(For review of the judgment of this Court dated 01.12.2015 in 
CP.247/2011)  
 
Basharat Ali Khan  
 
 
… 
…  
Petitioner.  
versus 
Muhammad Akbar  
 
 
… 
… 
Respondent.  
 
For the petitioner   
: 
Sh. Zamir Hussain, ASC.  
S. Rifaqat Hussain Shah, AOR 
(Absent) 
 
For the respondent  
: 
Agha Muhammad Ali Khan, ASC.  
 
 
 
 
 
Ch. Akhtar Ali, AOR.  
Date of hearing  
 
: 
03.10.2016. 
 
 
 
 
 
O R D E R 
  
UMAR ATA BANDIAL, J. – The petitioner seeks review of the 
judgment of this Court dated 01.12.2015 (“Judgment”) whereby Civil 
Appeal No.247 of 2011 filed by the respondent was allowed and his 
suit for pre-emption was decreed.  
2. 
 
Review of our Judgment is pressed on the ground that 
an important aspect of the controversy escaped our consideration 
while writing the same. Our Judgment reversed the judgment of the 
learned High Court dated 11.01.2011 passed in revisional jurisdiction 
whereby the pre-emption suit filed by the respondent had been 
dismissed. The learned counsel for the petitioner has referred to the 
principles of review summarized in Abdul Ghaffar-Abdul Rehman  
vs.  Asghar Ali (PLD 1998 SC 363) for elucidating the ground of 
review urged by him, namely: our omission to consider an important 
C.R.P.147 of 2016.  
2
matter in controversy. It is contended that the respondent/pre-emptor 
did not in terms of Section 12(3) of the Punjab Pre-emption Act, 1991 
(“Act, 1991”) plead in his plaint the issuance of notice of Talb-i-Ishhad 
“by registered post acknowledgment due.” Nor did the respondent 
bring any evidence on record regarding the service of the registered 
notice of Talb-i-Ishhad by the production of the acknowledgment due 
card or through the statement of the postman who may have 
delivered such notice. This was necessary on account of the contest 
raised by the petitioner/vendee in his written statement that Talbs 
were not performed by the respondent/pre-emptor in accordance 
with the provisions of the Act, 1991. The law laid down by this Court 
in the case of Muhammad Bashir   vs.  Abbas Ali Shah ( 2007 SCMR 
1105) and Allah Ditta  vs.  Muhammad Anar (2013 SCMR 866) affirm 
that requirement of service of notice of Talb-i-Ishhad through 
registered post acknowledgment due is mandatory. Failure by a pre-
emptor to satisfy the said condition is fatal to the maintainability of 
his pre-emption suit. The omission by the respondent/pre-emptor to 
plead and prove service of notice of Talb-i-Ishhad upon the 
petitioner/vendee in the prescribed mode defeated his suit. 
Conversely, our Judgment under review had decreed that suit. 
3. 
 
By a candid admission made during his arguments, the 
learned counsel for the petitioner accepted that the above objection is 
not formulated in precise terms in the petitioner/vendee’s pleadings, 
namely, his written statement or his civil revision petition filed before 
the learned High Court. Although Issue No.4: “whether the plaintiff has 
completed talabs under the provisions of law? OPP” was framed yet 
learned counsel for the petitioner concedes that the point about the 
absence of “acknowledgment due” post was never urged or otherwise 
C.R.P.147 of 2016.  
3
argued before any Court including this Court during hearing of the 
respondent’s appeal by us. However, since the condition for a 
plaintiff/pre-emptor to prove service of notice of Talb-i-Ishhad goes to 
the root of the claim because the mode of service of Talb-i-Ishhad has 
been specifically prescribed by the Act, 1991 therefore, it is contended 
that this matter ought to have been examined, determined and 
established by the Court in its Judgment before dealing with the case 
on its merits. He submits that the Court has, accordingly, erred in 
fulfilling its duty to establish the maintainability of the respondent’s 
suit.  
4. 
 
Section 13(3) of the Act, 1991 provides as follows: 
 
 
“13.  Demand of pre-emption. –  
(1) 
… 
(2) 
… 
(3)   
Where a pre-emptor has made Talb-i-Muwathibat under 
subsection (2), he shall as soon thereafter as possible but not later 
than two weeks from the date of knowledge make Talb-i-Ishhad 
by sending a notice in writing attested by two truthful witnesses, 
under registered cover acknowledgment due, to the vendee, 
confirming his intention to exercise the right of pre-emption. 
Provides that in areas where owing to lack of post office facilities 
it is not possible for the pre-emptor to give registered notice, he 
may make Talb-i-Ishhad in the presence of two truthful witnesses.    
This Court in its reported judgment in Muhammad Bashir’s case 
(2007 SCMR 1105) has observed: 
“11. 
The requirement of, “sending a notice in writing” 
is followed by a rider i.e. “under registered cover 
acknowledgment due”. This signifies that the intention of 
law is not merely a formal notice on the part of the pre-
emptor conveying his intention to pre-empt but a notice 
served on the addressee to apprise him about his intention 
to pre-empt. To say that mere “sending of notice” is 
enough would make the expression “acknowledgment 
due” redundant. The service of the addressee, as 
prescribed in law therefore, is imperative. …” 
C.R.P.147 of 2016.  
4
The view expressed in the above referred precedent case has been 
followed consistently by this Court. More recently in Allah Ditta’s 
case (2013 SCMR 866), the Court has further explained that the 
plaintiff in a pre-emption suit bears the affirmative onus to prove 
Talb-i-Ishhad in a case where the respondent/vendee contests the 
same.  
5. 
 
Learned counsel for the respondent/pre-emptor relied 
upon the case of Raees Khan   vs.  Naseeb Khatoon (2006 SCMR 
1836) to claim that the petitioner/vendee had waived his objection of 
non-service of notice of Talb-i-Ishhad by not agitating the same before 
the learned High Court and also this Court. Therefore, the said 
objection cannot now be raised by the petitioner/vendee before us at 
the stage of review. 
6. 
 
We have carefully considered the respective submissions 
made by the learned counsel. There are two aspects of the point under 
discussion; firstly, whether the “acknowledgment due” part of the 
notice of Talb-i-Ishhad under registered cover constitutes an imperative 
element of the prescribed mode of service affecting the maintainability 
of a pre-emption suit; and if so, whether a vendee can waive service of 
notice of Talb-e-Ishhad upon him by such a prescribed mode. Section 
13(3) of the Act, 1991 specifies unequivocally that Talb-i-Ishhad shall be 
made by (i)written notice (ii)attested by two truthful witnesses 
(iii)under registered cover (iv)acknowledgment due. The only 
situation in which the Act, 1991 does not require the sending of notice 
by registered cover acknowledgment due is when the post office 
facility is not available to a pre-emptor [S.13(3) proviso of the Act, 1991]. 
Secondly, according to case law, the prescribed condition of service of 
notice by registered cover acknowledgement due may be relaxed 
C.R.P.147 of 2016.  
5
where the defendant/vendee admits that he has received notice of 
Talb-i-Ishhad. In all other cases, service of notice of Talb-i-Ishhad upon a 
vendee must be established by the proof of each of the afore-noted 
four prescribed elements of the notice of such Talb. These prescribed 
elements of the service of a Talb-i-Ishhad notice are specific statutory 
requirements for the proof of service of notice of such Talb which 
demand has been construed to be a mandatory obligation of a 
preemptor-plaintiff. This means that if any of the afore-mentioned 
four elements of the prescribed mode of service of Talb-i-Ishhad is not 
proven by a plaintiff, he dishonours his mandatory obligation and 
consequently, his pre-emption suit must fail. That deals with the first 
aspect of the matter noted above.  
7. 
 
In the present case, the issuance of notice of Talb-i-Ishhad 
is controverted by the petitioner/vendee which dispute forms the 
subject matter of Issue No.4 framed for resolution by the learned Trial 
Court.  It is important to recall that the respondent pre-emptor has 
failed to even aver in his plaint that such notice under registered cover 
was sent along with an acknowledgment due request. Therefore, 
unless permitted by the learned Trial Court, he could not have 
produced any evidence on the point of notice under registered cover 
being 
posted 
with 
acknowledgment 
due. 
Indeed, 
the 
acknowledgment due card was not produced on record by the 
respondent/preemptor nor was the postman, who may have 
delivered the notice, called to the witness box. Consequently, 
according to the pleadings and also the evidence on record, the 
respondent/pre-emptor has not discharged his burden to prove the 
service of notice of Talb-i-Ishhad as required under Section 13(3) of the 
Act, 1991. The respondent/pre-emptor thereby failed to satisfy his 
C.R.P.147 of 2016.  
6
mandatory obligation under the law. Such default is fatal for his pre-
emption suit. 
8. 
 
Turning to the next question, it is to be seen whether the 
omission by the petitioner/vendee to specify before the competent 
Courts the exact nature of the respondent/preemptor’s default to 
comply the requirements of Section 13(3) of the Act, 1991 estops the 
former from claiming a right to be served with a notice of Talb-i-Ishhad 
in accordance with the requirements of the said provision. In other 
words, has the petitioner/vendee by his failure to object the default 
committed by the respondent/preemptor in the service of notice of 
Talb-i-Ishhad waived his right to claim its service in accordance with 
Section 13(3) of the Act, 1991. In this context, a significant principle of 
law having some relevance was noticed during the Court proceedings. 
In the case of E.A.Evans    vs.  Muhammad Ashraf (PLD 1964 SC 536), 
this Court laid down the principle that a law requiring service of 
notice by a party has mandatory effect if such legal requirement aims 
at protecting a large class of persons as a matter of public policy. On 
the other hand, where the requirement of law is meant to protect an 
individual or a private interest, then such requirement may be waived 
by its intended recipient. In the facts of the precedent case, the notice 
in issue was held to be mandatory and not capable of being waived. 
On the other hand, in the case of Zehra Begum   vs.  Pakistan Burmah 
Shell Ltd. (PLD 1984 SC 38), it was held that by entering into an 
agreement for a period of 30 years, the landlord had bartered away his 
right to seek ejectment of his tenant on the ground of his personal 
need notwithstanding the fact that such a ground for ejectment had 
C.R.P.147 of 2016.  
7
been granted by the law. This view is based on the premise that the 
statutory right of seeking ejectment of a tenant on the ground of 
personal need of a landlord grants the lessor/landlord a private or 
personal right. The statutory provision does not purport as a matter of 
public policy to safeguard landlords as a class of persons.  
9. 
 
In the instant case, the requirement of Talbs as 
prescribed in the Act, 1991 enforces the substantive principles of 
Islamic Law on the subject of pre-emption. Specified features of the 
Talbs envisaged by the Act, 1991, as noticed above, have been held in 
the precedents referred above to be mandatory because of their 
statutory intent and as requirements of Islamic Law codified by the 
Act, 1991. The mode and measures for service of notice of Talbi-i-
Ishhad prescribed in Section 13(3) of the Act 1991 extend protection to 
vendees of immovable property against claims of pre-emption 
assailing the purchases made by such vendees. To our minds, the 
various steps prescribed in Section 13(3) in the Act, 1991 for the 
performance of Talbs implement the public policy of the law to 
exclude delay and vexatious claims for the benefit of defendant/ 
vendees as a class in pre-emption suits. In this sense, the statutorily 
prescribed mode of service cannot be waived by a party. 
Consequently, the failure by the petitioner/vendee to highlight an 
obvious deficiency in the performance of Talb-i-Ishhad by the 
respondent pre-emptor does not debar the former from pointing out 
the same at any stage of the proceedings to the Court. This is because 
the said defect strikes the maintainability of the respondent’s pre-
emption suit.  
C.R.P.147 of 2016.  
8
10. 
 
In the circumstances discussed above, we find that the 
suit filed by the respondent/pre-emptor was deficient for lacking both 
the assertion and the proof of facts establishing a mandatory condition 
for the maintainability of his suit, namely, service of written notice of 
Talb-i-Ishhad under registered cover “acknowledgment due.” The said 
deficiency is apparent by the absence of affirmative and supporting 
material on record. Had the said omission been noticed and 
considered by the Courts adjudicating the matter, it is patent that the 
ultimate result of the proceedings would have been different. 
Notwithstanding the default by the petitioner/ vendee to highlight or 
articulate such objection before any forum, the Courts’ record 
contained material that demonstrated the said defect. A deficiency 
that was obvious from the pleadings, issue No.4 as framed, the 
evidence led by the plaintiff-pre-emptor and the terms of the 
applicable law, was over-looked by the Courts thereby arriving at an 
anomalous result in the proceedings. We consider that the failure by 
the respondent/pre-emptor to prove the service of Talb-i-Ishhad in the 
prescribed mode has defeated the maintainability of his pre-emption 
suit. A material aspect of the controversy had thus escaped our notice 
in our Judgment. An omission whereby the Court has over-looked 
important material that would alter the decision in the case constitutes 
a fit ground for the grant of review under Article 188 of the 
Constitution of Islamic Republic of Pakistan. Reliance is placed on 
Muhammad Zubair  vs.  Muhammad Zia (2004 SCMR 1077), Suba   
vs.  Fatima Bibi (1996 SCMR 158) and Fida Hussain   vs.   The 
Secretary, Kashmir Affairs (PLD 1995 SC 701).  
C.R.P.147 of 2016.  
9
  
 
For the foregoing discussion of the facts and the law, we 
allow this review petition and dismiss the appeal filed by the 
respondent/pre-emptor. No order as to costs.        
    
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
Islamabad, 
03.10.2016. 
Irshad Hussain /*   
 
    
APPROVED FOR REPORTING.  
