2013 CLC 131 (PLP)

MUHAMMAD AMEER BHATTI, J.

Through this civil revision the concurrent findings of facts recorded by both the learned Courts below in a suit for possession through pre-emption, have been challenged.

2. By virtue of a suit for possession through pre-emption the petitioner challenged the sale Mutation No.336 dated 2-3-1998, whereby the property measuring 107-3/4 Kanals was sold out to the defendants/respondents for a consideration of ostensible sale price Rs.12,50,000/- as incorporated in the impugned mutation and as averred in the plaint the "Talbs" were performed as envisaged under section 13 of the Punjab Pre-emption Act, therefore, by exercising the right of "Talb-e-Khasoomat" the suit was filed. The respondents/defendants filed their written statement, wherein they controverted the facts of the case besides raising two preliminary objections. From the divergent pleadings of the parties, issues were framed and parties were allowed to lead their evidence according to their onus on issues. It is noticed that during the pendency of this suit an application for production of the original notice dated 7-3-1998 sent by the petitioner to the defendants by fulfilling the requirement of the "Talb-e-Ishhad" was moved, the respondents/ defendants while submitting their written reply produced the said notice in the Court and the learned trial Court vide order dated 18-2-2000 observed that since the requisite notice has already been attached with the written reply of the application, thus disposed of the application in the above terms.

3. The learned counsel for the petitioners contends that main thrust of both the learned Courts below while recording the concurrent findings of facts was that "Talb-e-Ishhad" (second Talb) had not been performed as envisaged by section 13 of the Punjab Pre-emption Act and consequent dismissal is contrary to the record of the case and relevant provision of law. Further contends that notice was sent to the respondents by exercising the "Talb-e-Ishhad" which was produced in original by the respondents/defendants during the suit proceedings, therefore, it was neither necessary nor the petitioners were obliged to produce the witnesses of the "Talb-e-Ishhad" to prove the factum of desptach of notice or its service upon the respondents as already proved facts need not to be proved again. Moreover the notice had been produced on the application of the petitioner in original, therefore, the factum of "Talb-e-Ishhad" stood proved as an admitted fact. Thus, the findings rendered by both the learned Courts below are against the record of the case, hence not tenable in the eye of law.

4. On the other hand learned counsel for the respondents raised preliminary objection that civil revision is not maintainable on the ground that the petitioner has not affixed the stamp duty (ticket) on the decree impugned in the civil revision, therefore, the civil revision has not filed in the required form and liable to be dismissed on this sole ground. Further contends that the plaintiff in his testimony admitted the price of the land in dispute above Rs.20,00,000/-, therefore, instead of revision petition the R.S.A. should have been filed and if at this stage this civil revision is converted into R.S.A. it would be time-barred and liable to be dismissed. Further contends that there is also a deficiency in the court-fee as full court-fee has not been affixed despite having its knowledge, therefore, at this stage he could not be allowed to make good the deficiency in the court fee. He further contends that in his evidence, the plaintiff has refused to purchase the land on the price paid by the respondents/defendants vendee, therefore, he is not entitled to seek the decree of the suit as he still was not willing to purchase the land for a consideration of an amount paid by the respondents, therefore, the suit of the petitioner was not maintainable. Further contends that it was the foremost duty of the plaintiff to prove "Talbs" to seek the decree of possession through pre-emption and in this case the plaintiff has not produced the witnesses of "Talb-e-Ishhad", therefore, he failed to perform "Talb" as envisaged under section 13 of the Punjab Pre-emption Act, hence the suit has been rightly dismissed by both the learned Courts below by rendering the concurrent findings of facts, hence this petition has no merits and liable to be dismissed. Reliance is placed on Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639), Munir Hussain and 7 others v. Raja Mushtaq Ahmad (PLD 2006 Lahore 48), Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233) and Abdul Khaliq (deceased) through L.Rs. v. Ch. Rehmat Ali (deceased) through L.Rs and others (2012 SCMR 508). 4.(a) I have considered the arguments of the parties and gone through the record of the case.

5. It is settled law that the facts admitted by the other party need not to be proved as required by law. In this case the notice which was sent to the respondents was tendered in Court by the defendants/ respondents themselves to acknowledge the performance of "Talb-e-Ishhad". The production of two witnesses is required in a case where the defendants refused to admit the performance of "Talb-e-Ishhad" or deny the service of the notice upon them. Of course, in that case it would have been the duty of the plaintiff to produce the witnesses, who signed the notice but also to prove its despatch by producing the receipts and also the acknowledgement due and the postman to show the effect of the service upon the defendants but in this case the defendants themselves by producing the notice in original admitted the factum of "Talb-e-Ishhad", therefore, there was no need to produce any witness to prove of the performance of "Talb-e-Ishhad". Therefore, both the learned Courts below did not evaluate the evidence on record in its proper perspective besides proceeded against the provisions of law as well the principle laid down by the Hon'ble Supreme Court of Pakistan and arrived at erroneous conclusion. Thus, the findings recorded by both the learned Courts below were, thus, not sustainable.

6. Now adverting to the other objections about the maintainability of the revision petition, conversion of this revision petition into R.S.A. does not affect the rights of any party and the non-affixing of the stamp duty on the decree sheet does not impinge on the rights of the parties who filed the petition in this Court within time. It was the office who had to raise the objection at the time of filing of the petition had it been raised by the office at the proper time, the petitioner would have been in a position to remove all those objections in accordance with law. It is also settled law that once petition is filed in the Court in time, it never becomes a time-barred unless it is not declared by the presiding officer by providing the opportunity to remove the objection. Reliance is placed on Mst. Sabiran Bi v. Ahmad Khan and another (2000 SCMR 847). So far as the deficiency in the court-fee is concerned, the Hon'ble Supreme Court of Pakistan has already settled this dispute in landmark judgment reported as Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289) holding that the Courts are competent to direct the plaintiff to make the deficiency in the court-fee by providing at least one opportunity with specific amount and unless any contumacious act is found by non-compliance of the order of the presiding officer, the suit or appeal or revision should not be dismissed.

7. I have explored the matter from all possible angles as pointed out by the learned counsel for the respondents but I do not find any substance in the arguments of the learned counsel for the respondents, therefore this petition is allowed. Consequently, the judgments of both the learned Courts below dated 12-9-2005 and 3-8-2007 are set aside. Resultantly, the suit of the petitioner stands decreed subject to payment of (Rs.12,50,000+75010+62,500) within a period of one and half month from the judgment of this Court. Plaintiff is further directed to make up the deficiency of court-fee Rs.1500/- within period of one month from today. No order as to costs. MH/M-251/L Revision allowed.