2005 PLP 1 (YLR)

(6) Whether the plaintiff has fulfilled requirement of Talbs as required by law? OPP (7) Whether the plaintiff possesses superior rights of pre-emotion? OPP (8) Relief. The learned trial Court dismissed the suit vide impugned judgment and decree dated 9-10-2001. The petitioner being aggrieved preferred an appeal in the Court of learned Additional District Judge, Chiniot, who dismissed the same vide impugned judgment and decree dated 4-3-2004, hence the present revision petition.

2. The learned counsel of the petitioners submits that petitioners had specifically mentioned Talb-e-Ishhad in paras. Nos.3 and 4 of the plaint and specifically stated in her statement in the following terms:-- He further submits that the aforesaid statement of petitioner in examination-in -chief was misread by both the Courts below and observed that the petitioners have not fulfilled the requisite Talb-e-Ishhad under section 13 of the Pre-emption Act, which is the result of misreading and non-reading of the record. Merely stating to the said Ibrahim to go with her to the respondents is sufficient compliance of section 13 of the Pre-emption Act.

3. The learned counsel of the respondents submits that both 'the Courts below have given concurrent finding of fact against the petitioner/plaintiff after proper appreciation of the evidence on record and the learned counsel of the petitioner failed to point out any piece of evidence, which was misread by both the Courts below. He further submits that petitioner has not mentioned date, time and place in the contents of the plaint, therefore, both the Courts below were justified to dismiss the suit of the petitioner. In support of his contention, he relied upon Abdul Hameed alias Abdul Majeed v. Altaf Hussain NLR 1998 Civil

182. He further submits that petitioner failed to announce to purchase the land in question immediately, therefore, petitioner failed to fulfill the requirements of Talbs in terms of section 13 of the Pre emption Act and the judgments of both the Courts below are in accordance with law laid down by the superior Courts. In support of his contention, he relied upon Rashid Ahmad v. Bashir Ahmad 1995 CLC 1924. He further submits that statement of the witnesses of the petitioner is highly contradictory, which was duly noted by the Courts below, therefore, revision petition is liable to be dismissed. In support of his contention, he relied upon Nazir Ahmad v. Aziz Ahmad 1998 MLD

253. He further urges that petitioner failed to prove the Talbs in accordance with law laid down by the superior Courts. In support of his contention, he relied upon Mst. Umat-ul -Latif v. Mst. Zainab Bibi 2001 MLD 355.

4. The learned counsel of the petitioner in rebuttal submits that petitioner has fulfilled the requirements of Talbs in accordance with law, therefore, both the Courts below erred in law to non-suit the petitioner without application of mind and without reasons. He further submits that the First Appellate Court has counter-signed the judgment of the trial Court without application of mind.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

6. It is better and appropriate to reproduce the operative part of the impugned judgment of the First Appellate Court to resolve the controversy between the parties:-- "Perusal of statement of P.W.1 Mst. Khairan goes to reveal that when she was apprised of sale of disputed land, she asked the informant to accompany her to Ghulam Mustafa for getting of land, on the second day she went there but they did not accede to her demand. According to this deposition it becomes crystal clear that no jumping demand has been made by the plaintiff, she merely said to have asked the informant to accompany her and asked them to transfer the land to her after getting sale amount. This assertion in my humbly view hardly qualifies to be a Talb-e-Muwasibat. It also transpires from this deposition of P.W.1 Mst. Khairan that while making Talb-e-Ishhad before the defendant she did not make any reference to the, performance of Talb-e-Muwasibat made by her on receiving information about .the sale of land. Similarly as pet Exh.P.I notice of Talb-e-Ishhad it appears that no reference again shown to have been given while making Talb-e-Ishhad on 25-10-1996. The above discussion comes to this that plaintiff has failed to prove the performance of Talb-e-Muwasibat and Talb-e -Ishhad, hence finding of learned trial Court upon issue No.6 is upheld. After deciding Issue No.6 it will be sheer academic discussion to dilate upon the remaining issues, therefore, findings of learned trial Court upon remaining issues are maintained." Mere reading of the aforesaid operative part clearly reveals that the First Appellate Court has decided the case without reappraisal of the evidence on record and without application of mind. In fact First Appellate Court has upheld the judgment of the trial Court without judicial application of mind, which reveals that First Appellate Court has countersigned the judgment of the trial Court, which is not in consonance with the laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din's case PLD 1964 SC

829. It is the duty and obligation of the judicial officers to decide the controversy between the parties after application of mind, which is the judicial duty of the Presiding Officer to decide the controversy between parties after application of mind with reason as per law laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC

173. The relevant observation is as follows:- "To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in. its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted", judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance." The same view was also laid down by the Honourable Supreme Court in Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC

158. The relevant observation is as follows:-- "Such an order, we regret to say, does not disclose a proper application of the mind of the High Court to the merits of the case that was before it. As was pointed out by this Court it the case of Adamjee Jute Mills Limited v. The Province of East Pakistan." The First Appellate Court has decided the appeal of the petitioner in violation of the law laid down by the Honourable Supreme Court in the aforesaid judgments. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case PLD 1983 SC 53 to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom, therefore, the First Appellate Court has committed material irregularity. This Court has ample jurisdiction to disturb the findings of fact in such situation as the principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case 1988 SCMR

851. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per law laid down by the Honourable Supreme Court in Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. The judgments cited by the learned counsel of the respondents are distinguished on facts and law. In view of what has been discussed above, the revision petition is accepted with no order as to costs. The case is remanded to the First Appellate Court to decide the case afresh after reappraisal of the evidence on record. I do not want to decide the case myself in such situation one of the parties will lose right of revision before this Court. The parties are directed to appear before the First Appellate Court, who is directed to decide the appeal afresh without being influenced by the observations of this Court as expeditiously as possible. Parties and their counsel are directed to cooperate with the First Appellate Court so that the matter may be finalized as expeditiously as possible. In case any of the party or its counsel fails to cooperate with the First, Appellate Court then the First Appellate Court is directed to invoke -the penal provisions against that party. M.I./K-66/L Petition accepted.