1992 PLP 1954 (CLC)

‑‑‑‑O.VII, R.11‑‑‑Constitutionof Pakistan (1973), Art.199‑‑‑Rejection of plaint‑‑‑Concurrent finding of fact

Constitutional jurisdiction‑‑‑Scope‑‑ Defendant in pre‑emption suit seeking rejection of plaint on the ground that plaintiff had not made Talabs as required by law while in para. 2 of the plaint it was mentioned that plaintiff had made Talabs in presence of two witnesses‑‑ Application for rejection of plaint was dismissed as the question whether or not Talabs were made was to be decided in trial after evidence of parties‑‑ Revision filed against the order was also rejected‑‑‑Held, concurrent findings of two Courts below not suffering from any jurisdictional error could not be interfered with in exercise of Constitutional jurisdiction. M.M. Saeed Baig for Petitioner. Date of hearing: 22nd January, 1992. A suit for possession through pre‑emption filed on 17th February 1988, claiming the right of pre‑emption being co‑sharer, was dismissed as not maintainable on 24th July, 1990. An application for restoration of the suit was filed and the learned Civil Judge restored the same vide order dated 27th April, 1991. The petitioner/defendant then filed an application for rejection of the plaint on the plea that the plaintiff has not made `Talabs' according to Islamic Jurisprudence. This application was rejected by the learned Civil Judge, vide order dated 12‑10‑1991, observing that in para. 2 of the plaint, it has been mentioned that on having knowledge of transaction in dispute, plaintiff has made `Talabs' in presence of Ata Muhammad and Muhammad Munir. It was added that in the presence of para. No.2 of the plaint, it becomes a question of fact which can only be decided after recording the evidence. The petitioner‑defendant then filed a revision petition challenging the aforesaid order. The learned District Judge vide order dated 16‑11‑1991 dismissed the revision petition observing that it was a matter of evidence as to whether `Talab Musabat' was made by the plaintiff or not.

2. Having gone through the impugned order as well as the plaint, I am satisfied that the impugned order passed by both the Courts below does not suffer from any jurisdictional error. The plaintiff in para. 2 of the plaint has made averments with regard to the making of `Talabs'. The question whether these `Talabs' have satisfied the requirement of law, is a question in respect of which an issue can be claimed and the said issue, if so, claimed can then be decided after providing an opportunity to the parties to produce necessary evidence. An opportunity of addressing the arguments to the parties to present their respective points of view, is also to be allowed.

3. In the circumstances noted above, no case for interference in exercise of extraordinary Constitutional jurisdiction of this Court, has been made out. I8 The petition, therefore, fails and is dismissed in limine. H.B.T./K‑35/L Petition dismissed.