2016 PLP 685 (YLR)

ABDUL LATIF KHAN, J.

This revision has been preferred against the judgment/order dated 26.04.2013, passed by learned Additional District Judge (Lahor) Swabi whereby appeal filed by respondent was accepted and the judgment and decree dated 17.12.2012 passed by learned trial Court was dismissed. Arguments heard record perused.

2. A perusal of record reveals that the plaintiff has filed a suit for possession through pre-emption in respect of property sold vide Mutation No.2502 attested on 27.2.2008. It is averred in the plaint that she acquired the knowledge on 5.3.2008 at 2.00 p.m. in her house situated at Moza Lahor through Saim Shah in presence of Shah Jehan who there and then announced to pre-empt the suit. The plaintiff was non-suited by the trial Court on the ground that the plaintiff has not mentioned the date and time of writing of notice 'Talb-e-Ishhad' in the plaint and also based his findings upon other gross contradictions in the statement of other PWs. The findings were reversed by the Court of appeal by dint of impugned judgment.

3. It is pertinent to mention that no grave contradiction has been pointed out by the learned trial Court. The scanning of evidence shows that there is no contradiction even of minor nature in the evidence of plaintiff. Mere fact that plaintiff deposed that the children had gone to school where as informer stated that other children and females were present in the home, is not a contradiction fatal to the case, nor can be termed as a grave contradiction. It is not on record that at the time of 'Majlis' children were present or not rather the presence of any person including children in the house would not amount and considered to be their presence in the 'Majlis' and on this score plaintiff cannot be non-suited. Similarly the contradictions to the effect that for scribing notice of 'Talb-e-Ishhad' plaintiff and witnesses have come together or separately would not be fatal to the case and as such no contradiction has been pointed out by the petitioner to non-suit the plaintiff.

4. So far as the execution of notice 'Talb-e-Ishhad' is concerned, that stands proved as the death certificate of one of the witness was posted as Ex.APW.3/2 which was not objected at the time of its exhibition. PWs.4 and 5 are consistent regarding preparation of notices and mailed to the vendee defendant in accordance with law. Non-mention of date and place of 'Talb-e-Ishhad' in the plaint is not the requirement of law and by now the condition of mention of date of notice 'Talb-e-Ishhad' in the plaint has also been relaxed by the apex Court in the case of "Daud Shah v. Waris Shah and others" reported in 2014 SCMR 852 wherein it is observed that omission to date notice of 'Talb-e-Ishhad' in the plaint would stand cured by annexing the copies of notice of 'Talb-e-Ishhad' along with postal/ acknowledgment receipts. Moreover the vendee has accepted the receipt of notice and postman while appearing as PW.2 has stated that vendee was personally known to him being co-villager and the notice was delivered to him after obtaining his signature and number of CNIC which shows that the delivery of notice has been proved. The Court of appeal has decided the lis pending before it with conscious and application of independent mind warrants no interference. For the aforesaid reasons, this petition along with CM being devoid of merits are dismissed. ZC/95/P Revision dismissed.