2006 PLP 457 (MLD)

SHEIKH AZMAT SAEED, J.

This civil revision is directed against the appellate judgment and decree dated 6-11-200-, whereby the appeal filed by the respondent against the judgment and decree dated 21-12-1999 passed by the learned Civil Judge was accepted.

2. The brief facts leading to the filing of this petition are that the petitioners filed a suit for possession through pre-emption in respect of the suit property in dispute pertaining to the transaction of sale recorded vide the Mutation No.600, dated 31-3-1996 in favour of the respondent vendee. It was contended in the plaint that the petitioners had a superior rights of pre-emption that the consideration for the sale was actually Rs.3,40,000 and had been incorrectly shown as Rs.4,00,000 with mala fide intention to defeat and frustrate rights of pre-emption of the petitioners. The respondent entered appearance contested the suit filed his written statement wherein, inter alia, it was contended that consideration was in fact Rs.4,00,000 as disclosed in the transaction. It was further contended that the petitioner had failed to perform the Talb in accordance with law and was otherwise estopped from filing the suit. The superior right pre-emption of the petitioner was also disputed. The valuation of the suit was also challenged. On the pleading of the parties issues were framed and parties put to evidence. Thereafter, the learned trial Court vide judgment dated 21-12-1999 decreed the suit in favour of the present petitioners. The learned trial Court held that the Talbs in question has been performed in accordance with law by the petitioners, who had a superior rights pre-emption, however, the consideration was held to be Rs.4,00,000 as alleged by the respondent. It was also held that the petitioners were not estopped from filing the suit and seeking pre-emption.

3. Aggrieved the respondent filed an appeal before the First Appellate Court which was accepted vide the impugned judgment and decree whereby the suit filed by the petitioners were dismissed.

4. The First Appellate Court vide the impugned appellate judgment and decree has held that the petitioner had failed to prove that the Talbs had been performed in accordance with law and it was further held that the petitioners were estopped by their own conduct to pre-empt the sale in question.

5. The learned counsel for the parties have been heard and the record appended with this petition has been perused. The primary basis of the decision of the first Appellate Court is the ostensible discrepancy in the statements of the P.Ws. as to the day and date of the performance of the Talbs in question. The witnesses of the petitioners/plaintiffs in their statements have stated exact number of years, months and days as to when the sale took place the knowledge thereof became available to the petitioners and the Talbs performed. The First Appellate Court has examined the matter in mathematical terms, which perhaps was not justified as a statement was made more than three years after the event. A The apparent discrepancies must necessarily be examined in the context of the entire evidence rather than in isolation. The evidence of the P.Ws. has not been examined in its totality and it its proper context.

6. The case of the petitioners is that if knowledge of the sale was communicated to them by one Rashid Ahmad, P.W. in whose presence Talb-e-Muwathibat was also performed. It is alleged the said witness was an employee of a school and was present at the said school here could not have communicated the information about the sale as has been alleged. In this behalf the learned counsel for the respondent relied upon copy of the attendance register. It is not clear as to whether the said document bears the signatures of Rashid Ahmad, P.W. or not.

7. It has also been noticed that the First Appellate Court has based its decision on the fact that the name of the person, who disclosed the factum of the sale has not been mentioned in the plaint, similarly the name of the person, in whose presence Talb-e-Muwathibat was performed is also not mentioned in the plaint. As a general rule plaint is not required to contain the gist of the evidence. In the aforesaid context C perhaps this omission may not be sufficient to non-suit the petitioners and the entire evidence must necessary be taken into account. The finding of the First Appellate Court on the issue pertaining to estoppel is a little sketchy and the entire evidence of the parties in this behalf has not been taken into account or consideration.

8. In this view of the matter it would be appropriate to set aside the judgment and decree of the First Appellate Court and remand the case for decision afresh on merits. It is an old matter, therefore, the First Appellate Court is directed to decide the appeal expeditiously, if possible within four months from the receipt of this order. H.B.T./L-136/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.