2017 PLP 27 (MLD)

QALANDAR ALI KHAN, J.

Since identical questions are involved, this single order shall also dispose of C.R. No.106-A/2015 and C.R. No.110-A of 2015.

2. All the three revision petitions arise out of three suits for possession through pre-emption by the petitioner/plaintiff, Mati-ur-Rehman, in respect of sale Mutations No.3638, 3639 and 3640 attested on the same dated i.e. 20.08.2010. The suits were lodged on the basis of superior right of pre-emption, but were resisted by the respondents/ defendants on several grounds, including the ground of non-compliance with the mandatory requirements of talbs and further that the witnesses of Talb-i-Ishhad were not truthful witnesses. The trial Court framed issues in all the three suits and afforded opportunity to the petitioner/ plaintiff to adduce evidence, which he availed to the extent of producing 6 witnesses, including Postmaster Kotli Bala (PW.1), Booking Clerk GPO Mansehra (PW.2), Booking Clerk Post Office City Mansehra (P.W.3), Patwari Halqa Acharia village Kotkay Bala (PW.4), Syed Basharat Shah, Petition Writer (PW.5) and Munawar Khan (PW.6).

3. It may be added here that PW.6 Munawar Khan was summoned by the Court on the application of the petitioner/plaintiff through NBW of arrest after the plaintiff failed to produce his remaining evidence though several chances were given to him for the purpose. Even after recording statement of Munawar Khan PW.6, the petitioner/plaintiff failed to produce the remaining evidence, therefore, he was served with a notice under Order-XVII Rule-3, C.P.C., and cases were adjourned to 30.10.2012 for remaining evidence of the petitioner/plaintiff. Even then, the petitioner/plaintiff was unable to produce his remaining evidence, therefore, his right to produce oral evidence was struck off under Order XVII, Rule-3, C.P.C. and the suits were dismissed vide judgments/orders of the learned Civil Judge-VIII, Mansehra, dated 30.10.2012.

4. Aggrieved of the judgments/orders of the learned trial Court, the petitioner/plaintiff preferred appeals, which too met the same fate and were dismissed by the learned appeal Court/Additional District Judge-V, Mansehra, vide judgments/orders dated 22.01.2015; hence these revision petitions, inter alia, on the grounds that neither notice was served upon the petitioner/plaintiff before invoking the penal provision under Order XVII, Rule 3, C.P.C. nor statement of plaintiff was recorded though he was present in the Court.

5. It may be observed at the outset that the impugned judgments/ orders of both the trial Court as well as appellate Court are mainly based on the ground of non-fulfillment of the mandatory requirements of Talbs before filing suits for pre-emption. In his plaints, in all the three suits, petitioner/plaintiff claimed that he was informed about the sale Mutation by Munawar Khan on 11.11.2010 whereupon he instantly made Talb-i-Muwathibat in the same sitting before the said Munawar Khan and thereafter on 13.11.2010, he dispatched notice of Talb-i-Ishhad, witnessed by the said Munawar Khan (PW6) and Faiz Muhammad. As such, Munawar Khan (PW6) was not only informer but was also witness of Talb-i-Muwathibat and Talb-i-Ishhad; but when he appeared in the witness box as PW.6 he totally denied knowledge about any sale transaction; and, though, admitted his thumb impression on notice of Talb-i-Ishhad, nevertheless, showed his ignorance on what account his thumb impression was obtained as he was illiterate. In his cross-examination, he explained that the petitioner/plaintiff was his brother-in-law, therefore, he was reluctant to appear in the Court for evidence for fear of annoyance of the petitioner/plaintiff. He further admitted that the vendor Laiq-ur-Rehman was the real brother of the petitioner/plaintiff and was residing in Karachi and used to stay with petitioner/plaintiff whenever he happened to visit his village. The fate of all the three suits was sealed after such a damaging statement by a witness who was mentioned as informer as well as witness of Talb-i-Muwathibat and Talb-i-Ishhad by the petitioner/plaintiff himself. In other words, the petitioner/plaintiff stood nowhere after his alleged said two demands were demolished by his own witness.

6. Adverting to the striking off the oral evidence of the petitioner/plaintiff under Order XVII, Rule 3, C.P.C., suffice it to say that not only notice under Order XVII, Rule 3, C.P.C., was given to the petitioner/plaintiff on the previous dated i.e. 24.10.2012; but there is also nothing on record showing desire of the plaintiff to be examined as his own witness in support of his cases.

7. In view of the above, no illegality or irregularity could be found in the concurrent findings of both the courts below, calling of interference by this Court in its revisional jurisdiction. The revision petitions are, therefore, dismissed in limine. SL/282/P Petition dismissed.