2014 PLP 402 (CLC)

MALIK MANZOOR HUSSAIN, J.

Instant revision petition has been preferred against judgment dated 3-7-2013 passed by the learned Appellate Court, whereby the appeal filed by the petitioner has been dismissed and the judgment dated 25-9-2012 passed by the learned trial Court, was maintained.

2. Briefly, the facts of the case are that the petitioner filed a suit for possession through pre-emption against the respondent. The same was contested by the respondent. Through judgment and decree dated 3-1-2012, the learned trial Court dismissed the suit. Appeal filed by the petitioner met the same fate through impugned Judgment dated 11-7-2012, hence the instant revision petition.

3. Learned counsel for petitioner contended that the findings of both the learned Courts below on the point that the petitioner/plaintiff did not appear personally in Court as a witness, was without any substance as in civil cases each of the party can contest the case through attorney. He further contended that statement of the attorney can be treated as that of the principal and relied upon the judgment of august Supreme Court of Pakistan rendered in the case of Muhammad Haneef v. Mst. Munawar Bibi alias Munawar Noor 1999 SCMR 2230.

4. Conversely, the learned counsel for the respondent contended that both the Courts below have properly considered all the points raised in the instant revision petition and delivered proper judgment. He further contended that requirement of the petitioner to appear before the Court as witness was mandatory requirement and referred to Article 129(g) of the Qanun-e-Shahadat Order, 1984. Reliance is placed on Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 and Mst. Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193.

5. Arguments heard and record perused.

6. It is an admitted fact that the suit was filed by the petitioner through which she exercised her right of pre-emption. The respondent objected to the authenticity of thumb-impression placed by the petitioner on her Wakalat Nama as well as on the plaint which issue finally came up before this Court in the shape of Writ Petition No.1819 of 2009 filed by the petitioner, the petition was allowed with the following observation:

"In the aforesaid circumstances, the impugned order of the Civil Court is modified to the effect that petitioner shall appear personally before the trial Court where her thumb-impression shall be obtained and the same shall be sent along with original documents containing her thumb-impression to the Expert and Photostat documents allegedly bearing her thumb-impression should not be sent for comparison. This Writ Petition is allowed in the above terms".

7. In the light of order of this Court dated 13-1-2011 the petitioner appeared before the trial Court and her thumb-impression was duly procured by the learned trial Court. Later on both the counsel for the parties settled this issue by conceding the fact that let the case be decided on merit instead of indulging in the matter of comparison etc.

8. The suit for pre-emption was filed under the special law wherein the special mode is prescribed in order to prove Talb-e-Muwathibat. As Talb-e-Muwathibat is fact which is personal to the pre-emptor and it is the pre-emptor who is bound to prove the same through cogent and convincing evidence. Being mandatory the Hon'ble Superior Courts have taken notice of the same and series of Judgments delivered on the point. In the case of Dilshad Begum v. Nisar Akhtar reported in 2012 SCMR 1106, the Hon'ble Supreme Court of Pakistan while relying upon earlier judgment of the Supreme Court delivered in Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957, hold that best evidence with regard to performance of Talb-e-Muwathibat was the person who had made such a Talb and not his general attorney. The pre-emptor is required to prove the same through his own statement and attorney may not be substitute for pre-emptor under the law. There may be exception to this rule wherein the pre-emptor is a minor or is invalid or due to some disabilities he cannot appear in Court in person.

9. In the present case the petitioner duly appeared before the trial Court at the time of institution for executing power of attorney and later on to make available her for thumb-impression, which shows her availability for appearance. No disability was shown at the time of recording of statement by her attorney and also no plausible reason was mentioned which restrained the petitioner not to appear for recording of statement. The best evidence with regard to Talb-e-Muwathibat was the petitioner and no one else. The effects of non-production of best evidence is provided under Article 129(g) of the Qanun-e-Shahadat Order, 1984. The case of the petitioner would be squarely lied on Article 129(g) of the order ibid referred to above as without assigning any reason the best evidence was withheld. The petitioner failed to discharge the onus or shift the onus to the respondent. Therefore, in absence of any explanation by the petitioner as to why she withheld herself for examining as a witness, the legal presumption would be that there must be something which goes against her.

10. In the aforesaid referred circumstances, the Judgments of both the Courts below are unexceptionable and based on correct appraisal of material available before them. The instant petition is devoid of any force and is dismissed. AG/664/P Revision dismissed.