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Petitioner: BAZIDA through Legal Heirs and others VS Respondent: HUSSAIN BAKHSH through Legal JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Abdul Qadeer Chaudhry, Wali Muhammad Khan Title:BAZIDA through Legal Heirs and others vs HUSSAIN BAKHSH through Legal
JUDGMENT
Reported As: 1994 SCMR 1784 Result: Leave refused Judgment JUDGMENT ' ABDUL QADEER CHAUDHRY, J.---This petition for leave to appeal is directed against the judgment of the Peshawar High Court, dated 25-2-1992; whereby the Civil Revision petition filed by the petitioner was dismissed. 1 The petitioner filed a suit for pre-emption which was dismissed by the learned Civil Judge on 11-3- 1991. The petitioner's appeal before the learned District Judge and the revision petition before the High Court were dismissed by the respective Courts. 3. The suit of the petitioner was dismissed on the principle laid down in Said Kamal Shah's case (PLD 1986 SC 360). The learned High Court also took notice of the judgment of the Court reported as Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1990 SC 865). 4. Learned counsel for the petitioner submitted that the petitioner has a superior right of pre- emption, therefore, his suit could not be dismissed. The learned counsel has relied upon Muhammad Sharif v. Muhammad Sharif (1992 SCM R 1129). Now, the. Final judgment on the subject has been passed by this Court in Rozi Khan v. Karim Shah (1992 SCM R 445) which has specifically stated that "only those suits which were pending before the commencement of the new Act, 1987 will not abate where the right of pre-emption is claimed by such pre-emptors in whom the right of pre-emption vests under section 6 of the said Act and they have made a demand of pre-emption (Talab) as required under the provisions of section 13 thereof. Section 13 of the Act clearly provides that "the right of pre-emption of a person shall be extinguished unless such a person makes demands for pre-emption". The learned counsel admits that no Talabs had been made by the pre- emptor in the present matter. However, he submitted that no issue was framed, therefore, the
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petitioner could not prove that the requisite Talabs had been made. Talabs are conditions precedent for institution of a suit. The plaint does not specifically state that any Talab had been made. 5. All the three Courts have taken a correct and legal view. This petition has no force: The same accordingly is dismissed and leave to appeal is refused.