2002 PLP 118 (MLD)

‑‑‑‑"Material fact or issue of fact"‑‑‑Connotation. (e) Word and phrases‑‑ ‑‑‑‑"Discrepancies"‑‑‑Meanings. Black's Law Dictionary ref. Abdul Aziz Mian for Petitioner. Malik Noor Muhammad Awan for Respondent. Date of hearing: 19th September, 2001. Petitioner purchased land measuring 20 Kanals in Mauza Wandi Bhambiran Wali, Tehsil and District Mianwali through registered sale deed No. 178 dated 27‑6‑1993 for a price of Rs.1,30,000 from Yar Muhammad. To pre‑empt the sale of the said land, respondent filed a suit for possession through pre‑emption for being `Shafi Shareek'. The petitioner filed a contesting written statement which led to framing of silk issues by the learned Civil Judge. After the‑trial the learned Civil Judge dismissed the suit of the respondent/pre‑emptor by judgment and decree dated 12‑2‑1998 on the ground that the respondent/plaintiff had failed to prove the requirement of Talabs in accordance with law. Respondent filed an appeal there against. The learned District Judge, Mianwali vide judgment and decree dated 8‑3‑2000 by accepting the appeal, decreed the suit of the respondent/plaintiff and held that requirements of Talabs have been fulfilled by the respondent. The petitioner/vendee has assailed the abovesaid judgment and 'decree dated 8‑3‑2000 through this revision petition.

2. It is contended by the learned counsel for the petitioner that the learned District Judge has not only failed to consider the evidence of the parties, but has rendered a vague judgment on the basis of incorrect inferences from the evidence of the parties. It was further contended by the learned counsel for the petitioner that evidence of the respondent/pre‑emptor on the dates of Talabs was discrepant and reference was specifically made to paras. 2 and 3 of the plaint and statement of respondent appearing as P.W.2.

3. Contrarily, the learned counsel for the respondent has supported the impugned judgment and decree on the ground that respondent appearing as P.W.2 has specifically pleaded knowledge of transaction on 11‑10‑1993 and vagueness of two/three months period accruing in the statement of.P.W.2 was only due to illiteracy. It was further contended that P.W.3 and P.W.4 were the witnesses of Talabs whose statements are required to be evaluated along with that of P.W.2 to form an opinion regarding date and time of Talabs.

4. I have examined the impugned judgment and decree. The learned District Judge while ren0cring his judgment on making of Talabs has overlooked to specify and refer to particular portions of the depositions of witnesses bearing upon the dates of the knowledge of the plaintiff‑pre emptor and the exact dates of pronouncement of Talabs leading him to conclude that requirements of timely Talabs was fulfilled by the respondent‑pre‑emptor. Furthermore the impugned judgment does not show that the learned Appellate Judge had attended to and endeavoured to meet the specific reasoning advanced by the learned Civil Judge in detail, to support his opinion and ratio decidendi, which he dismissed on a very broad and bland bases that trial Court had dismissed the suit on the basis of minor discrepancies about the time". The learned District Judge had not spelt out or made a reference to any of the "discrepancies" termed as minor. It has also not been opined as to how and why did he consider such discrepancies to be minor. In a suit for pre‑emption, under 1991 Act and Injunctions of Islam each and every fact and discrepant statement bearing upon the date and time of the knowledge of the plaintiff‑pre emptor and Talab‑e‑Muwathibat has to be taken into account to adjudge upon performance of the plaintiff‑pre‑emptor as per section 13 of the Punjab Pre‑emption Act, 1991. In the area of proof and evidence, a fact has been defined by Black's Law Dictionary, Sixth Edition Centennial Edition (1891‑1991as `minor' only when it is "a relative, collateral or subordinate fact or a circumstance" in comparison to a material fact which in legal parlance has been termed as "essential to the case and without which the case could not be supported, proved or established. "Material facts or issue of fact are such as are necessary to determine the issue and upon which outcome of litigation depends". A "discrepancy" has been denied by Black's Law Dictionary as under: "Discrepancy: A difference between two things ought to be identical, as between one writing and another; at variance. Also discord, discordance, dissonance, dissidence, unconformity, disagreement, difference." In a case like pre‑emption, where date and time of knowledge and promptness/timely demand of claim are the hinges of the case, a minor fact having a bearing upon the material fact for determination of exact time and date, also becomes relevant and material fact. Further, it was also important to identify the exact nature of discrepancy/difference/discord in the statements of witnesses to discard the same as irrelevant, totally unimportant, worthless and minor having no relationship with material fact under proof. Rejection of evidence of witnesses qua date of knowledge and Talabs of the plaintiff‑pre‑emptor calling the same "minor discrepancy about the time", without identifying and particularizing the discrepancies and their nature cannot be approved.

5. In view thereof, this revision petition is accepted and the impugned judgment and decree is set aside. The case is remanded to the learned District Judge, Mianwali for re‑decision of the appeal, which shall be deemed to be pending before him. Parties are left to bear their own costs. S.A.K./M‑817/L Case remanded.