2017 PLP 209 (CLCN)

ABDUL RAHMAN AURANGZEB, J.

Through this Civil Revision, the judgment and decree dated 04.05.2012 passed by learned Additional District Judge, Layyah, has been assailed which was filed against the judgment and decree dated 04.06.2011 passed in Civil suit whereby the learned Civil Judge dismissed the suit of the petitioner/plaintiff.

2. Facts, in brief, are that the petitioner/plaintiff instituted a suit for possession on the basis of pre-emption in respect of land, briefly described in the head-note of the plaint, which was purchased by the respondent through registered sale deed No. 5123 dated 23.06.2007 for a consideration of Rs.80,000/- but in order to defeat the right of pre-emption of petitioner, it was wrongly entered as Rs.120,000/-. On getting the information of said sale the pre-emptive rights have been invoked by the petitioner on 10.10.2007 when he was sitting in his Dera along with the witnesses and after the pronouncement of Talb-e-Muwathibat, a notice of Talib-i-Ishhad dated 11.10.2007 was sent to the respondent through registered envelope AD. The suit was contested by the respondent. The learned trial Court framed the issues, recorded pro and contra evidence of the parties and thereafter dismissed the suit of the petitioner/plaintiff. The petitioner felt aggrieved, filed an appeal which also met the same fate. During the pendency of appeal the petitioner filed an application under Order XLI, Rule 27, C.P.C. sought permission for production of additional evidence but the same was also dismissed along with the judgment and decree dated 04.05.2012. Hence, this Civil Revision.

3. Learned counsel for the petitioner contends that he has filed an application under Order XLI, Rule 27, C.P.C. for production of Postal Clerk and Postman through additional evidence but the same was disallowed on wrong premise of law. He further pointed out that the diet money of the summoned witnesses has been deposited on 23.02.2009, hence, it is the duty of the Court to summon the witness through its own motion and by not allowing to produce the said witnesses, the right of petitioner was seriously prejudiced.

4. In reply thereto while supporting the judgment and decree passed by appellate Court, learned counsel for the respondent vehemently opposed the raised contention and prayed for dismissal of instant revision petition.

5. Heard. Record perused.

6. Without dilating upon the other aspect of performance of talbs, I would like to restrain myself upon the application under Order XLI, Rule 27, C.P.C. In the said application, the contention of the petitioner is that he was not given proper opportunity for production of the evidence and in a hasty manner the learned trial Court closed the evidence. Analyzing the evidence of the petitioner, I have found that after framing of issues the petitioner/plaintiff himself appeared as PW-1 and produced two witnesses namely Allah Bakhsh and Fayyaz Hussain, who shown to be the attesting witnesses of notice Exh P-1. The statements of PWs of petitioner recorded on 26.05.2010. The petitioner recorded his statement that except remaining evidence of post office and documentary evidence, he closed his evidence. Thereafter on 24.11.2010 counsel for the petitioner tendered his documentary evidence and recorded his statement for closure of his affirmative evidence subject to right of rebuttal. Thereafter the evidence of the respondent was recorded and on 15.04.2011 and the counsel for the petitioner stated that he did not want to produce any evidence in rebuttal. After the conclusion of trial, the learned trial Court mainly non-suited the petitioner due to non-production of Postman as well as non-production of acknowledgment due card in evidence.

7. Confining to the above, I am not convinced with the assertion of the petitioner that it is mandatory for the Court to summon the witnesses through his own procedure when diet money of the summoned witness deposited. Although, to some extent it is the duty of the Court to summon the witness, but in the instant case when the private witnesses of the petitioner examined, the petitioner at his own choice stated in his statement on 24.11.2010 that he wants to close his evidence. At this stage it is the best time for the petitioner to bring into the notice of the Court that since 26.05.2010 to 24.11.2010 the summoned witnesses are not willing to appear before the Court and for procuring their attendance before the Court for recording of their testimony, coercive measure may be adopted by the Court. But the petitioner did not invoke the procedure of the trial Court and satisfied with his evidence and closed the same without tendering any further evidence of postman as well as acknowledgement due card.

8. When the vendee from the very first day had denied the receipt of notice of talb-i-Ishhad, so in this backdrop the record of Post office and statement of Postman/Postal Clerk were the most crucial record for the petitioner to prove the factum of service of alleged notice but he did not produce the postal clerk as well as the postman and also not produced the acknowledgement due card. I have specifically asked learned counsel for the petitioner that if the acknowledgment due card had been duly served upon the respondent and the same was received back then for what reasons not annexed with the plaint at the time of filing of the suit under the provisions of Order VII, Rule 14(2), C.P.C. Learned counsel for the petitioner is unable to reply this query and stated that the acknowledgment due card is in his custody and he is ready to produce the same during the course of evidence if permitted by the learned appellate Court under the provision of Order XLI, Rule 27, C.P.C. For further evaluation of the requirement of Order XLI, Rule 27, C.P.C., the said provision has been reproduced as under:-

27. Production of additional evidence in Appellate Court.

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."

9. The text of above provisions reflects that it is not a mere procedural matter in the appeal to allow the petitioner to fill the lacuna by way of additional evidence. The criteria laid down in the provisions is that initially it is the duty of the petitioner to produce the evidence before the trial Court and if the trial Court has refused to admit the evidence which ought to have been admitted then the petitioner shall move the resort of additional evidence. In other events if the appellate Court requires any document or any witness to be examined to enable the Court for pronouncement of his judgment then in that particular situation the provisions of Order XLI, Rule 27, C.P.C. can be invoked. Both the above mentioned conditions have not been available to the petitioner as the affirmative evidence should be produced by the petitioner on his own turn when he was having full opportunity to prove his case before the learned trial Court. As I have already discussed that the petitioner closed his evidence on 24.11.2010 and thereafter he also not opted to rebut the defendant's evidence where the respondent/defendant categorically denied receiving of any notice through postal envelope. The parameters of the additional evidence further elaborated in the judgment cited "Rana Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board of Liquidation, Lahore and another" (2016 SCMR 2067) wherein it is held that the powers under the provisions of Order XLI, Rule 27 of the C.P.C. for allowing additional evidence available is not unfettered nor the appellate Court has the discretion to allow additional evidence per its own caprice, rather it is (discretion) structured/limited by the factors enunciated in the said provisions of law. It is further held in the said judgment of the Apex Court that if the petitioner fails to produce the Postman and thereafter by granting the permission through application under Order XLI, Rule 27, C.P.C., it may provide a chance to make up for his omission and fill up the lacuna of his case when there is no case of additional evidence has been set out. Therefore, the decision rendered by the learned appellate Court while dismissing the application under Order XLI, Rule 27, C.P.C. is not required any further interference and to this extent the same is upheld.

10. Without production of Postman/Postal Clerk and postal receipt, the process of Talb-i-Ishhad had not duly performed by the petitioner/plaintiff and with this deficiency the case of the petitioner falls in the ambit of non-performance of Talb-i-Ishhad. The ratio laid down in Khan Afsar v. Afsar Khan and others (2015 SCMR 311) wherein it is held that if the mandatory requirement in order to prove the factum of service of notice of Talb-i-Ishhad is not complied with then the suit cannot be decreed. Since this deficiency is floating on the surface of record, therefore, the petitioner is unable to persuade this Court that Talb-i-Ishhad was performed by the petitioner in accordance with law. Similarly non-production of acknowledgement due card is also a glaring deficiency available on the record. The Hon'ble Supreme Court of Pakistan in a latest judgment titled as Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309), has also made the following observations with regard to performance of Talb-i-Ishhad:- "Section 13(2) of the Act, 1991 specifies unequivocally that Talb-i-Ishhad shall be made by (i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgement due. The prescribed condition of service of notice by registered cover acknowledgement due may be relaxed where the defendant/vendee admits that he has received notice of Talb-i-Ishhad. In all other cases, service of notice of Talb-i-Ishhad upon a vendee must be established by the proof of each of the afore-noted four prescribed elements of the notice of such Talb. These prescribed elements of the service of a Talb-i-Ishhad notice are specific statutory requirements for the proof of service of notice of such Talb which demand has been construed to be a mandatory obligation of a pre-emptor-plaintiff. This means that if any of the afore-mentioned four elements of the prescribed mode of service of Talb-i-Ishhad is not proved by a plaintiff, he dishonours his mandatory obligation and consequently, his pre-emption suit must fail". (emphasis provided)

11. The above view is now further reaffirmed with the earlier dicta of the Apex Court in case reported in "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) and "Allah Ditta through L.Rs. and others v. Muhammad Anar" (2013 SCMR 866). Thus, my candid and firm opinion is that the application of section 13(3) of Punjab Pre-emption Act, 1991, was not followed in its true perspective. Therefore, such default is fatal for pre-emptor to his pre-emption suit on account of failure of performance of Talb-i-Ishhad.

12. Pursuant to the above discussion, I am not convinced with the plea of the petitioner who failed to point out any illegality or irregularity in the impugned judgments and decrees of the Courts below. Resultantly this Civil Revision has no merits and the same is, hereby, dismissed. MQ/A-69/L Revision dismissed.