1984 PLP 2718 (CLC)

(a) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.VI, r.7 5 5.115‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑Revision ‑‑Suit for pre‑emption‑‑Plea raised inconsistent with pleadings ‑‑Suit for pre‑emption brought on ground of ownership of estate and in Patti‑‑Suit dismissed as vendee also possessed such qualifications‑‑Appellate Court relying on a pedigree table decreed suit on ground that plaintiff and vendee had common ancestor‑‑Such plea not taken in pleadings‑=Appellate Court, held, could not base his judgment on a plea not pleaded in plaint‑ Judgment of appellate Court set aside by High Court in revision in circumstances. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.XLI, r.1, O.XLII, r.l 6 5.115‑‑Placing of certified copy of trial Court judgment on record, held, not obligatory in Revision‑‑Even in appeal Court, held further, has power to dispense with production of certified copy of such judgment. The respondents' predecessor‑in‑interest, namely Muhammad Sharif, who died during the pendency of this litigation, brought a suit against the petitioners for possession of the land in dispute through exercise of right of pre‑emption. As per averments in the plaint, he based his superior right of pre‑emption on being an owner of the estate and in the Patti wherein the land in dispute is situate. The petitioners contested the suit and denied the respondents' superior right of pre‑emption This controversy is reflected by issue No.2. On evaluation of the evidence, on the record, the learned trial Court found, that the respondent failed to establish his ownership in the Patti. As regards their claim of 0eing owners of the estate, in the opinion of the learned trial Court, the petitioners were also possessed of this qualification. Thus, it came to conclusion, that the deceased respondent, failed to establish his superior right of pre‑emption. Accordingly, issue No.2 was answered against him. Resultantly, the suit was dismissed on 2nd November,1971.

2. In appeal brought by the plaintiff/respondent, the learned District Judge referred to the pedigree, table Exhs.P.2 and P.3, to hold that the deceased and the vendor have a common ancestor, namely, Abdur Rehman. He was of the view that in consolidation proceedings, the Patti was abolished, the learned trial Court should have referred to the pedigree‑table which proved the respondent's relationship with the vendor. In view of his these findings, he reversed the trial Court's decision on issue No.2 and decreed the suit. The validity of the judgment and decree, dated 6th January,1973 passed by the learned first appellate Court is under challenge in this revision. I have heard the learned counsel for the parties and examined the record. It is argued on behalf of the petitioners that in the plaint, the respondent rested his claim as to the superior right of pre‑emption, on the sole ground that he was the owner of the estate and also owner in the Patti, which plea he failed to establish. In the submission of the petitioners' learned counsel, as the ground relating to respondent's relationship with the vendor was never raised in the plaint, the evidence in this behalf could not be looked into and, therefore, the learned District Judge acted illegally in basing his decision on a ground which was never pleaded by the plaintiff/respondent.

3. The correctness of the proposition that unless a point is incorporated in the pleadings, it is not permissible for the Court, to take into consideration the evidence thereon, was not disputed by the learned counsel for the respondents. He, however, has come forth with the submission that para. 5 of the plaint and the written statement, when read together, amply indicate that apart from the specific plea, that the deceased was owner of the estate and in Patti, a general and comprehensive ground, as to the respondents' superior right of pre‑emption was also intended to be pleaded. According to him, the contents of para. 5 (ibid) cover the ground regarding relationship as well.

4. It is not possible to agree with the stand taken up by the learned counsel for the respondents. Para. 5 of the plaint and the corresponding para of the written statement do not lend any support to his arguments. It is evident from the plaint that the point on which the judgment of the learned first appellate Court is founded, has not been pleaded. As the plea of fact, regarding the relationship of the deceased with the vendor has not been pleaded, it was not open to the Court, to anchor its decision on such a plea. The judgment and decree of the learned first appellate Court, are therefore, liable to be set aside.

5. It is, to be seen, that at the time of the admission of the revision petition, the learned counsel for the petitioners made a prayer for conversion of the revision petition into an R.S.A'. By order, dated 20th Apri1,1973, this question was left open for consideration at the arguments stage.

6. As the suit land was admittedly sold for Rs.2,000 the petitioners' learned counsel, is now not serious to press this contention. It may be observed, that certified copy of the trial Court's judgment has not been appended with the memorandum of revision. The learned counsel for the respondents has endeavored to make some capital out of this omission, and canvassed that under Order XLII, rule 1 it was obligatory for the petitioners to have placed on the record certified copy of the trial Court's judgment at the time of the institution of the revision. This objection is not well‑founded. The petitioners have come to this Court under section 115, C.P.C. It has not been shown that Order XLII, rule 1,C.P.C. on its own force applies to the revision petitions. In any case, the entire record of the Courts below is before me. The petitioners' failure to file certified copy of the trial Court's Judgment cannot be construed, such a lapse as to call for dismissal of their revision petition. Even if the revision petition is treated as an appeal,1 it is within the competence of this Court to dispense with the production, of certified copy of the judgment in question.

7. For the foregoing reasons this revision petition is accepted and the judgment and decree of the learned first appellate Court set aside Consequently, the learned trial Court's judgment and decree dismissing the suit, shall hold the field. The parties are left to bear their own costs. M.B.A. Petition accepted.