2009 PLP 678 (SCMR)

IJAZ-UL-HASSAN KHAN, J.

This appeal preferred on behalf of Muhammad Suleman, appellant, arises out of a judgment passed by a learned Single Judge of the Lahore High Court, Multan Bench, Multan, accepting Civil Revision No.345-D of 2002 filed by Shaukat Ali respondent, setting aside judgment of First Appellate Court dated 5-3-2002 and restoring judgment of trial Court dated 31-3-2001.

2. The facts of the case briefly stated are, that suit-land detailed in the plaint, owned by Ashiq Ali and his sister Mst. Zaitoon was purchased by Shaukat Ali, vendee/defendant in consideration of Rs.2,75,000, vide Sale Mutation No.604 dated 25-1-1995. Muhammad Suleman, plaintiff instituted suit on 8-2-1995 in the Court of Senior Civil Judge, Khanewal, against Shaukat Ali, defendant to enforce his right of pre-emption in respect of suit-land ' on the ground of being `Shafi Khaleet' and `Shafi Jar' in suit Khata. The plaintiff claimed to have come to know of suit transaction on 31-12-1994 at his 'Dera' whereupon the spontaneously made `Talb-i-Muwathibat' in the presence of Muhammad Akram and Muhammad Arshad P.Ws.

3. The suit was resisted on all grounds legal as well as factual. After framing issues, both the parties produced their respective oral as well as documentary evidence. After hearing the learned counsel for both the parties and perusing the record learned Trial Judge non-suited the plaintiff on issue No.2 pertaining to `Talbs'. An appeal was preferred thereagainst in the Court of District Judge, Khanewal, which was accepted on 5-3-2002. Judgment of the trial Court was set, aside and suit was decreed on payment of Rs.2,75,000 plus transfer charges of Rs.27,772 as sale price of suit-land. A Civil Revision was filed by respondent in the Lahore High Court, Multan Bench, Multan, which was accepted on 8-12-2003, judgment of the Appellate Court dated 5-3-2002, was set aside and judgment of the trial Court dated 31-3-2001 was restored, as mentioned in the opening paragraph of this judgment.

4. We have given patient hearing to Mr. Abdul Rashid Awan, Advocate for the appellant and Mr. Muhammad Ozair Chughtai, Advocate, for the respondent. We have also perused the available record as well as the impugned judgment minutely.

5. Learned counsel for the appellant, after taking us through the material on record, contended with vehemence that evidence produced at the trial from the appellant side has not been appreciated in right direction; that impugned judgment is the outcome of misreading and non-consideration of the material evidence; that the impugned judgment is in conflict with the rule laid down by this Court in the matter of admissibility, entertainment and acceptance of the evidence and interpretation thereof and that minor discrepancies and contradictions appearing in the statements of Muhammad Akram and Muhammad Arshad P.Ws. could not be considered sufficient for not relying on their testimony. Concluding the arguments, learned counsel reiterated that a detailed and well reasoned judgment delivered by the Appellate Court, based on proper appreciations of evidence and application of law, has been set aside by learned High Court, without any justifiable reason, resulting in manifest injustice. In reply to objection raised by learned counsel for the respondent, regarding filing of appeal with delay, learned counsel for the appellant submitted, on the strength of a case reported as Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504, that is borne out from the' record of C.P.L.A. that office of this Court had entertained the same without any objection or protest in the normal course of business. It was never pointed out by the office that petition for leave to appeal would not lie or that direct appeal was barred by time. The learned counsel added that silence on the part of the office clearly tends to show that office bona fide believed that C.P.L.A. would lie before this Court from the judgment of the High Court even though it has reversed the judgment of the Appellate Court. Learned counsel added that no person shall suffer for the mistake of the Court. Appellant does not appear to be guilty of negligence or recklessness in the matter of prosecuting his remedy before this Court. Instant case being of a bona fide error, sufficient cause has been made out for the exercise of discretion in favour of the appellant.

6. Learned counsel for the respondent, on the other side, opposed the arguments of learned counsel for the appellant and supported the impugned judgment on all counts, maintaining that appeal has been filed with delay and merits dismissal on this score alone.

7. We have noted that High Court on the reappraisal of evidence came to the conclusion that evidence of the appellant on the question of "Talb-e-Ishhad" was discrepant, therefore, the same could not be held to have proved `Talb-e-Ishhad' having been made in accordance with law. Needless to add that mere general assertion in plaint that as soon as plaintiff learnt about sale transaction, he made the declaration of his intention to pre-empt the sale would not be sufficient compliance of section 13(1) of the Pre-emption Act, 1991. In cases where `Talb' was not made according to the established requirements, then the same could also be fatal to pre-emptor's right of pre-emption. Pre-emption being a feeble right, formalities required for its exercise and enforcement must be strictly observed and there must be a clear proof of it on record.

8. Needless to emphasize that this Court does not normally go beyond concurrent findings of facts recorded by the Courts below unless it is shown that the findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice. It is also well settled that this Court does not interfere with the findings of facts recorded by primary Courts or High Court when it is established that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. In this regard, reference can be made to the cases of Amir Abdullah Khan v. Kafaitullah Khan 2008 SCMR 756, Sheikh Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460, Shaukat Ali v. Allied Bank of Pakistan Ltd. 2007 SCMR 198, Shall Muhammad v. Khanzada Gull 2007 SCMR 368, Muhammad Zubair v. The State 2007 SCMR 437 and Muhammad Sharif v. Muhammad Anwar 2007 SCMR 687.

9. Adverting to the objection regarding limitation, we find that appellant was grossly negligent in prosecuting his remedy. The conduct of the appellant reflects gross negligence on his part in prosecuting the remedy before this Court. There is no material practice to the effect that this Court had been entertaining C.P.L.As in cases arising out of pre-emption suits decided by the High Court irrespective of valuation of the subject-matter of the dispute in the Court of first instance. It is well-settled that ignorance of law is no excuse. Moreover, as by passage of time beyond the period fixed under the Supreme Court Rules, 1980 for filing of appeal, a valuable right has accrued in favour of the respondent, which cannot be lightly disturbed or destroyed at the behest of the appellant, as held by this Court in Allied Bank Limited v. Majeebur Rehman Qazi and others NLR 2006 Labour 1, wherein it was observed:-- "In law the parties and the counsel are supposed to be fully conversant with the legal position and no premium can be claimed on the premise that the proceeding was filed beyond the period prescribed by law on account of bona fide mistake. In our considered opinion, this circumstance per se does not constitute a sufficient cause within the meaning of the term enabling this Court to exercise its discretion in favour of the petitioner."

10. Having considered the matter from all corners, we find that learned counsel has not been able to point out any infirmity factual or legal warranting interference by this Court. The learned High Court in the impugned judgment has exhaustively discussed all aspects of the matter leaving no room for further consideration. No instance of misreading or omission to consider the important evidence has been pointed in the impugned judgment, justifying interference by this Court. The mere assertion of learned counsel for the appellant that evidence has not been appreciated in its true perspective, without a positive attempt on his part to substantiate the same is of no consequence.

11. In the facts and circumstances of the case, we do not find any substance in this appeal, consequently, the same is dismissed on limitation as well as on merits. We make no order as to costs. M.B.A./M-21/SC Appeal dismissed.