1996 PLP 1406 (MLD)

(5) Whether the plaintiff and the rival pre-emptor have waived their right of pre-emption? (6) Which of the rival pre-emptors has got a superior right against the vendee-defendant and against their selves inter se and to what extent? (7) Whether the sale consideration recorded in the impugned mutations have fixed in good faith and actually paid? (8) Market value? (9) Which of the rival pre-emptors is entitled to the decree as prayed for and to what extent? (10) Relief.

3. After recording evidence of the parties, both the suits were dismissed by the Court of 1st instance on 9-12-1989.

4. Being dissatisfied with the judgment and decrees, both the respondents/rival-Pre-emptors preferred Appeals Nos.6/13 and 8/13 in the Court of District Judge, Lakki. The learned Appellate Court disposed of both the appeals through a single judgment and as a result thereof the suit of respondent No.1 was partially decreed, whereas the findings of the lower Court in respect of the suit of respondent No.2 were maintained.

5. Gul Nawaz, defendant-vendee, has impugned the judgment and decree of the Appellate Court through the instant revision on variety of grounds.

6. I have heard learned counsel for the parties and perused the record with their valuable assistance.

7. Both the suits were instituted under the provisions of N.-W.F.P. Pre- emption Act, 1987 (Act X of 1987, hereinafter to be referred as the Act). Under the said Act, the right of pre-emption comes into existence only if the provisions contained in section 13 are complied with, meaning thereby that the Talbs are condition precedents in order to give birth to a right of pre-emption. The learned trial Court while framing the consolidate issues had overlooked the averments contained in the pleadings of the parties pertaining to Talbs and, therefore, did not cast any issue on this count.

8. Issues are framed under Order 14 of Civil Procedure Code. It provides that "issue arises when a material proposition of law or fact is affirmed by one party and denied by other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. In the instant case, both the rival pre-emptors averred in their respective plaints that they have made the Talbs at the relevant times and this factum was specifically denied by the vendee-defendant in his written statement. Despite of it, the material issue of Talbs was not framed. It has prejudiced the case of both the rival pre-emptors. In absence of the distinct issue, the parties did not shoulder the responsibilities 'of the proof or rebuttal of the Talbs. Time and again it has been observed by the Superior Courts for the guidance of the subordinate Courts that ample care should be taken when the case is fixed for settlement of the issues. It is also the duty of the respective counsel to assist the Court at this juncture, so that proper issues are framed according to the pleadings of the parties. Guidance can be derived from the judgment reflected in 1992 MLD (Peshawar) 1439. This important aspect of the case also escaped sight of the Appellate Court.

9. In the circumstances of the case, the findings of the two Courts below deserve interference as they have failed to exercise their jurisdiction properly which has resulted into miscarriage of justice.

10. Though the rival pre-emptor, Shor Gul, has not preferred any revision against the judgment and decree of the lower Appellate Court, but he had been arrayed as respondent No.2 in the instant revision petition. The attested copies of his cases are appended with civil revision and his original record has been requisitioned. Since both the suits were consolidated and were disposed of by a single judgment and the same recourse was adhered to by the lower Appellate Court, therefore, the rival pre-emptor/respondent No.2 Shor Gul, is also held entitled to reap the fruit of this judgment. It has been laid down in numerous precedents that no person should suffer by the act or omission of the Court. B Framing of the issues is the duty/act of the Court and if a Court fails to discharge its duty properly, then in that eventuality its acts of omission will not deprive a person of his legal rights. The proceedings of the lower Court dated 20-3-19$8 vide which such an important issue was left to be framed has prejudiced the cause of the rival pre-emptors.

11. Resultantly, I am constrained to accept this revision petition. The judgment and decree of both the Courts below are set aside and the case is remanded to the trial Court with the directions that the provisions of Order 14, C.P.C. be taken into consideration in the light of the cited judgment MLV 1992 (Peshawar) 1439 and proper issues be framed from the pleadings of the parties. A distinct issue on the question of Talbs should also be settled.

12. After giving notice to both the rival pre-emptors and the vendee defendant, the trial Court will start the proceedings afresh from the stage of settlement of issues and, thereafter, the case shall be disposed of in accordance with law. In peculiar circumstances of the case in hand, the parties are left to bear their own costs. A.A./1938/P Case remanded.