2003 PLP 1899 (YLR)

Malik Aziz-ud-Din Ahmad for Petitioner. Sh. Istadamat Ali for Respondents. Date of hearing: 17th March, 2003. Vide Mutation No. 1555 attested on 9-10-1990 the respondents purchased the suit land. On 20-10-1990 the petitioner filed a suit for possession of the suit land by pre emption. He claimed to be a Shafi Khalit and Shafi Jar. According to him the land had been sold for Rs.20,

000. The performance of Talbs was pleaded. The respondent filed a written statement denying the said allegations and stating having paid Rs.20,000 for the land. Issues were framed. The relevant being following Issue No.6. Whether the plaintiff fulfilled the pre requisite conditions of Talbs? OPP Evidence of the parties was recorded. The learned trial Court found that the petitioner has a superior right of pre-emption, Issues Nos. 1 to 3 pertaining to limitation, improvements and court-fee/value were found in favour of the petitioner. He did not decide the question of market value or the actual price paid. Under the said Issue No.6 it was found that whereas Talb-i-Muwathibat had been made, Talb-i-Ishhad has not been made inasmuch as the notice had not been transmitted to the respondents and that the original of notice had not been produced and no permission had been sought for leading secondary evidence. The suit was accordingly dismissed vide judgment and decree dated 20-1-1992. A first appeal filed by the petitioner was dismissed by a learned ADJ, Talagang, on 27-2-1996 who confirmed the said findings.

2. I have gone through the copies of records, with the assistance of the learned counsel for the parties. As stated by me above, both the learned Courts below concurred that Talb-i-Muwathibat had been made. Regarding Talb-i-Ishhad it has been stated that permission for leading secondary evidence had not been obtained. Now I find that it is in the plaint that a notice under registered cover A.D. was sent to the respondents on 18-10-1990. This, of course, has been denied by the respondents. Now what happened was that petitioner as well as two witnesses i.e. P.W.2 and P.W.3 stated that the notice was issued and that the said witnesses had attested the same. Now the copy of the notice was produced in the statement of learned counsel as Mark 'A'. The postal receipt was produced as Exh.P.5 and the A.D. receipt was produced as Exh.P.6. To my mind a failure of justice has occurred in the present case. It appears that no one was aware that the document in question was itself a notice. Now Article 77 of the Qanun-e-Shahadat Order, 1984 exempts such a document from the rigours and the said provision of law i.e. there is no need for a notice to produce such a document before its admission in evidence as secondary evidence. The result is that upon a reading of Article 76(a) read with proviso to Article 77 of the said Qanun-e-Shahadat Order, 1984, the document i.e. copy of the notice was admissible as secondary evidence and there was no need for the permission of the Court. This being so, the document could have been referred to in the statements of the P.Ws. to prove its execution, attestation anal ultimately its despatch.

3. For the reasons stated above, I allow this civil revision, set aside the judgments and decrees of both the learned Courts below. The result would be that the suit of the petitioner shall be deemed to be pending before the learned Civil Judge, Talagang. The evidence in the matter of Talb-i-Ishhad shall be recorded afresh with reference to the copy of the said notice and after giving a chance to the respondents to rebut the same, the question as to whether Talb-i-Ishhad had been made or not shall be decided. Since no one has questioned the findings on Issues Nos.1 to 5, the same are confirmed. The learned trial Court shall, however, decide Issues Nos.7 and 8 pertaining to the actual payment of the ostensible sale price and the market value, if need be. The parties to appear before the learned trial Court at Talagang, on 17-4-2003. The learned trial Court shall requisition the records and proceeds further in the light of the observations made above. L-63/L Order accordingly.