SHAN MUHAMMAD alias SHANY vs SAID MASHAL S — 2022 SCMR 1340 SUPREME-COURT

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SHAN MUHAMMAD alias SHANY VS SAID MASHAL S. 13(3)---Talb-i-Ishhad, notice of---Pre-emptor not mentioning date of issuance of notice of Talb-i-Ishhad in the plaint---Bona fide omission---Substantial compliance of statutory provisions---In the present case, though the date of issuance of notice of Talb-i-Ishhad ('the notice') was not mentioned in the plaint but the vendee (appellant) had never alleged such deficiency in his written statement and had simply denied the performance of Talabs in accordance with law within the stipulated time; no further details whatsoever were given in his written statement---Evidence led by the pre-emptor (respondent) clearly established the fact that the notice, which bore the date of its issuance/execution, was tendered in evidence without any objection by the vendee---Postman in this regard, who appeared as a witness had stated in categorical terms that the said notice through a registered cover was delivered to the vendee---Vendee had never ever raised the ground of non-mentioning of date of issuance of notice in the plaint during the trial or in both of his appeals---Vendee had tried to make out a case which was never pleaded by him earlier and the law did not allow him to make out a new case by raising such a factual plea---Entire evidence established the fact that both the Talabs were performed by the pre-emptor in accordance with law---Substantial compliance of the statutory provisions had been made by the pre-emptor and no prejudice had been caused to the vendee---Pre-emptor could not be non-suited for a bona fide omission of non-mentioning of the date of notice in the plaint---Notice was available on the file along with plaint from day one---So, simply not mentioning the date of issuance of notice could not be held to non-suit the pre-emptor in the peculiar circumstances of the case---High Court had rightly restored the judgment of Trial Court, whereby suit of pre-emptor was decreed---Appeal was dismissed. Head NotesCase Description

SHAN MUHAMMAD alias SHANY vs SAID MASHAL S — 2022 SCMR 1340 SUPREME-COURT

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