Pre-emptor must prove the factum of Talb-i-Ishhad by producing affirmative evidence which is always recorded before the evidence of a defendant.

 5. There is no substance in the arguments raised by the learned counsel for the petitioner as Hon’ble Supreme Court of Pakistan in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) and Allah Ditta through L.Rs and others Vs Muhammad Anar (2013 SCMR 866) has already held that the pre-emptor must prove the factum of Talb-i-Ishhad by producing affirmative evidence which is always recorded before the evidence of a defendant. Even otherwise proving of Talbs is mandatory and no question does arise of making a specific plea vis-à-vis its effectiveness by the defendant by producing affirmative evidence. Besides this, examining of record further reveals that the petitioner/plaintiff took a specific plea in his plaint that the respondent/defendant/vendee had refused to receive notice of Talb-i-Ishhad, whereas the sealed envelope dispatched to the respondent/vendee at his address received back unserved had not been produced in the Court rather photocopy of notice of Talb-iIshhad, envelope alongwith acknowledgement due and receipt of Post Office were alleged to have been attached with the plaint, whereas neither the original sealed envelope alongwith acknowledgement due were produced in evidence nor the same had been exhibited reflecting from record. Due course in case of return of un-served notice of Talb-i-Ishhad is that the sealed envelope alongwith acknowledgement due containing report of refusal or otherwise of Postman received back by the plaintiff must be produced in the Court and the Court in presence of the parties by de-sealing the envelope not only exhibits the original notice of Talb-i-Ishhad but also the acknowledgement due and envelope should always be exhibited to confirm that the envelope contains the same notice of Talb-i-Ishhad which was sent to the defendant/vendee. The above noted deficiency in the evidence sufficiently established that the petitioner/plaintiff failed to discharge his mandatory obligation in accordance with law.

Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Revision
2570-11

2017 LHC 4791