1992 PLP 505 (CLC)

(6) What was the market price at the time of sale? OPD. (7) Relief."

2. The trial Court recorded the respective evidence of the parties and after hearing the arguments proceeded to decree the suit vide judgment and decree dated 30‑10‑1984. The petitioners impugned this decree through an appeal, which came up for final hearing on the file of Additional District Judge. Vehari, who dismissed the same vide judgment and decree dated 17‑6‑1985.

3. Thereafter, the petitioners‑vendees filed the present revision. They have challenged the findings recorded by Courts below on issue No.4 as to waiver. The petition was admitted to hearing and notice issued to the respondent, who has entered appearance and defended the judgments and decrees in his favour.

4. I have heard the learned counsel for the parties. The learned counsel for the petitioners raised following points in support of the petition:‑ Firstly,? that the suit was not properly valued for the purposes of court‑fees and jurisdiction and the respondent did not make up the deficiency in spite of repeated opportunities granted to him by the trial Court. It is added that the trial Court while answering issue No.2 found that the court‑fees on the plaint is deficient to the extent of Rs.220 and directed the plaintiff to make up this deficiency by 15‑11‑1984. It is concluded that the plaintiff in view of his negligent and contumacious conduct was not entitled to any indulgence; Secondly, that the Courts below have failed to decide the issue of waiver being issue No.4 in accordance with the evidence on record. The learned counsel in this behalf has referred to the statements of D.W.3 Gulzar Ahmad, general attorney of the vendor, D.W.4 Lal Khan and statement of Abdul Marian petitioner No.1 as D.W.2. It is added that as against this evidence the respondent alone appeared and his statement is just meaningless and totally insufficient to rebut the evidence of the petitioners. It is concluded that issue No.4 was fully proved. In this behalf learned counsel for the petitioners has referred to the cases of Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 402), Baqri and 4 others v. Salehon and 3 others (PLD 1972 SC 133), Arshad Ahmad v. Naseer Ahmad (1984 CLC 1682), Amanat Ali and 3 others v. Muhammad Ali (1984 CLC 362), Sardar Muhammad v. Khuda Bakhsh and another (AIR 1935 Lahore 884) and Muhammad v. Muhammad Ali and another (AIR 1926 Lahore 243). It is added that this is a case of misreading and non‑reading of material evidence, therefore, it is a fit case for interference in revision. In this behalf reliance is placed on Mst. Bibi Jan v. Habib Khan (PLD 1975 SC 295), Tariq Yahya Khan and another v. Ali Nawaz and others (1984 CLC 935) and Feroza Din v. Abdus Salam and others (1984 CLC 974).

5. On the other hand, learned counsel for the respondent has argued that there is no material to substantiate the first argument of the learned counsel for the petitioners as to the court‑fee. It is added that this is revisional jurisdiction and material which is not on the file cannot be referred to and relied. In reply to other point it is argued that the statements of the D.Ws. are contradictory and do not inspire any confidence, therefore, the same has been rightly brushed aside and issue decided against the petitioners. The learned counsel for the respondent has maintained that the petitioners have miserably failed to prove issue No.4. There is neither any conscious relinquishment nor any overt act on the part of the respondent to prove the waiver against him. The learned counsel in this behalf has referred to Hassan Muhammad v. Abdul Hameed (PLD 1982 SC 159); Ghulam Muhammad v. Muhammad Bux (1980 CLC 2063), Mehr Kamir v. Wali Muhammad and 5 others (PLD 1972 Lahore 287), Murida v. Hayat Muhammad, etc. (PLD 1968 Baghdad‑ul‑Jadid 5), Muhammad lshaque and 3 others v. Dilawar and 4 others (1980 C L.C 1036) and Muhammad Anwar and another v. Wali Muhammad (PLD 1985 Lahore 489).

6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases referred and relied by them. Now I take up the first argument as to the deficiency of court‑fees. The learned counsel for the petitioners failed to refer to interim orders according to which the respondent was allowed more than one opportunity for making up the deficiency in the court‑fees in the plaint. The Learned counsel for the petitioners could not pick up any document on record to support his contention. The other part of the argument was that even the deficiency has not been supplied by the respondent as directed by the learned trial Court in its final judgment. Again the learned counsel for the petitioners failed to refer to or point out any document in support ` of his contention. The learned counsel for the respondent has rightly pointed out that the revision is to be argued on the basis of the record available. I uphold this objection and find no merit in the argument of the learned counsel on the point of court‑fees. This brings us to the material proposition canvassed by the learned counsel for the petitioners. The argument in nutshell was that the Courts below have decided issue No.4 as to waiver without bothering about the evidence on record. The learned counsel for the petitioners in this behalf has referred to the judgments of the Courts below. The relevant portion of the judgment of Civil Judge reads as under:‑‑ "The evidence of the defendants on this issue is not convincing one therefore, this issue is decided against the defendants." While the relevant portion of the judgment of the lower Appellate Court reads as under:‑‑ "One of the defendants Abdul Mannan appeared as D.W.2 before the trial Court and he has deposed that the plaintiff had struck this bargain but there is no cogent proof in this respect and the mere assertion of the appellant that the plaintiff has participated in the bargain is not sufficient to prove the issue of waiver. There must be strict proof in this respect to estop the plaintiff‑respondent to bring the present suit. The evidence on the file is simply based upon the assertion of the appellant which is not sufficient enough to prove the issue of waiver. I, therefore, hold that the appellants have failed to prove issue No.4. This issue has also been rightly decided by the learned trial Court against the appellants."

7. It is clear from the above portion of the judgment of the lower Court below that the judgment of the trial Court is no judgment in the eye of law. This cannot be called adjudication of the rights of the parties. Then comes the judgment of the lower appellate Court. It is clear from the operative portion produced above that it also did not take pains to go through the evidence, analyse, refer to the same and decide the plea raised by the petitioners. It seems that the lower appellate Court was not even conscious of the fact as to who were the witnesses examined by the petitioners to prove this issue. It is, therefore, clearly a case of misreading and non‑reading, therefore, amenable to revisional jurisdiction. Now I proceed to evaluate the evidence myself. D.W.3 Gulzar Ahmad is the attorney of the vendor. He has stated that firstly there was agreement for sale of the land to the respondent but since he could not arrange for the funds, therefore, he introduced the petitioners. The relevant portion of his statement reads as under: The witness was not cross‑examined on this point. Therefore, his statement will be deemed to have been admitted. D.W.4 Lal Khan stated that the respondent was instrumental in the deal of the suit land between the petitioners and Gulzar. The relevant portion of the statement reads as under:‑‑ The witness therafter stated that he came to know that earlier Sikandar had agreed to purchase the suit land. The learned counsel for the respondent has pointed out that this part of the statement is merely hearsay, therefore, carries no evidentiary value. The objection is justified but he has no explanation why the witness was not cross‑examined on the portion of his statement reproduced above. This way the statement of this witness also went unchallenged. Earlier to this Abdul Manan petitioner No.1 had appeared as D.W.2. He has categorically stated that the deal was struck with the blessing of the respondent. The relevant portion of his statement reads as under:‑‑ Again there is no cross‑examination on this point. The respondent has failed to shake the credit of the defence witnesses in the cross‑examination.

8. The learned counsel for the respondent argued that there is no misreading or non‑reading. He pointed out the following discrepancies in the statements of D.Ws;‑‑ Firstly, that D.W.2 ha's stated that the deal was struck at the Dera of Lal Khan and it was with Mukhtar (Ghulzar Ahmad D.W.3) while D.W.3 has stated that deal was struck with the good offices of Sharif. I have gone through the statements of D.W.2 and D.W.3. The criticism is uncalled for. The witnesses are deposing as to different transactions altogether. D.W.2 made statement touching the transaction with the vendecs while D.W.3 has stated as to the first transaction between the respondent and the vendor through Sharif, therefore, there is no contradiction. Secondly, that D.W. 4 had stated that he came to know that there was a transaction for land in dispute between the plaintiff and Gulzar. It is pointed out that this is hearsay evidence. I have already upheld this criticism in the foregoing paragraphs.

9. The respondent as against the evidence of D.W.2, which was fully corroborated by D.Ws. 3 and 4 who were the independent, natural and disinterested witnesses did not examine any witness. In rebuttal, there is only statement of the respondent himself. I have gone through this statement also. He has only denied that he was not present at the time of the sale‑decd or payment of the price. The relevant portion reads as under:‑‑ He has neither cared to deny the depositions of D.Ws. as to the earlier agreement to sell between him and the vendor nor he has pointed out why D.W.3 and D.W.4 have made statements against his interest. This statement does not inspire any confidence and in fact if looked from that angle then it is meaningless.

10. Now when the evidence of the petitioners and that of the respondent is put in juxtaposition and considered it is clear that it was the respondent who had agreed to purchase the land but since he could not arrange for the funds, therefore, he introduced the petitioners as vendees in his stead. The Courts below did not care to scrutinize the evidence of the parties on the point which renders their judgments illegal and liable to be set aside. I need not refer to the various precedents relief by the learned counsel for either side because waiver is a question of fact which depends on the evidence on record. There cannot be universal principle. The fact the plaintiff‑pre‑emptor had agreed to purchase the suit land but thereafter failed to arrange for funds showed his inability to purchase the land and introduced the vendees as purchasers in his stead. These facts are sufficient to constitute waiver.

11. The result is that I accept this revision petition, set‑ aside the judgments and decrees of the Courts below and dismiss the suit of the respondent with costs. AA./A‑40/L???????????????????????????????????????????????????????????????????????????? Revision accepted.