2021 PLP 1776 (YLR)

MUHAMMAD AMEER BHATTI, J.

The petitioner, by means of this revision petition, has called-in-question the validity and legality of the concurrent findings of fact recorded by both the learned Courts below in their judgments and decrees dated 06.10.2010 and 22.09.2011, respectively, whereby the suit and appeal filed by the petitioner were dismissed, hence, this revision petition.

2. Irrespective of the fact that both the learned Courts below have concurrently recorded the findings of fact in non-suiting the petitioner, which, to me, call for no interference, I have noticed that the learned trial Court vide its judgment and decree dated 06.10.2010 dismissed petitioner's suit after recording ex parte evidence, as the defendant-respondent did not appear before the learned trial Court and proceeded against ex parte. On gaining knowledge about pendency of suit, defendant-respondent moved an application for setting-aside the ex parte order dated 14.07.2009, which stood dismissed on 20.09.2010 and ultimately the suit, in due course of hearing, was dismissed with the observation that mutation was sanctioned on 18.10.2008 whereas the suit was instituted on 14.03.2009, hence, held to be barred by law being violative of the provisions of Section 30 of the Punjab Pre-emption Act, 1991. Apart from this, the learned trial Court observed non-compliance of its order for not depositing 1/3rd of the sale price as well as requisite Court-fee. The plaintiff-petitioner being dissatisfied, preferred an appeal, which met the same fate. It is also noticed that the petitioner specifically mentioned sending of notice of Talb-i-Ishhad vide registered post to the respondent-defendant, who in his application for setting-aside ex parte order asserted that at the relevant time, he was abroad, therefore, remained oblivious about institution of the suit although the petitioner-plaintiff in reply to aforesaid application negated the said stance. In such eventuality, besides answering the findings of non-fulfillment of Talb-i-Muwathibat recorded by both the learned Courts below, heavy onus was put on her shoulders to prove sending of notice of Talb-i-Ishhad and in discharge of said onus; she ought to have produced the postman, which she failed to do so. In this view of the matter, to prove the factum of Talb-i-Ishhad, production of postman is held necessary as per ratio laid down by the Hon'ble Supreme Court of Pakistan in a case reported as Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), which is found missing with the result that her alleged superior right of pre-emption stood extinguished due to said deficiency in evidence to prove the factum of Talb-i-Ishhad in accordance with the ratio decidendi by Hon'ble Supreme Court of Pakistan in referred case law.

3. Although both the learned Courts below had concurrently decided the case against the petitioner after proper appreciation of evidence, yet, in the interest of justice, I have also re-examined the material as well as evidence on record and do not find any illegality or infirmity in the judgments impugned warranting indulgence of this Court.

4. For what has been stated above, this revision petition has no merit and the same is dismissed-inlimine. SA/S-24/L Petition dismissed.