2009 SC MR 642 (PLP)

ZIA PERWEZ, J.

This appeal is directed against the impugned judgment dated 17-4-2007 of a learned Single Judge of the Lahore High Court, Lahore passed in Regular Second Appeal No.140 of 2004, whereby the concurrent findings of the two Courts below were set aside and the pre-emption suit filed by the respondent/plaintiff is decreed against the appellant/defendant subject to deposit of total amount of Rs.12,60,000 on or before 31-5-2007 in the trial Court.

2. Suit for pre-emption with respect to the house adjacent to the house of the respondent/plaintiff was dismissed by the learned trial Court on 8-2-2003 and maintained in Civil Appeal No.132 of 2003 by the learned Additional Sessions Judge, Kharian vide judgment and decree dated 7-8-2004 while, dismissing the appeal. Dissatisfied with the judgments and decrees of the two Courts below, respondent preferred R.S.A. before the Lahore High Court, Lahore, which was allowed by the learned Single Judge through the judgment impugned herein. Hence, this appeal.

3. The only ground arising in the appeal is that the evidence to prove the date of Talb-i-Muwathibat was stated to be made on 27-9-2000 by the respondent in his statement before the trial Court though he deposed on oath that he made Talb-i-Muwathibat before Talb-i-lshhad, disentitled him from the relief of pre-emption. Evidence to the effect that after making the Talb-i-Muwathibat on 27-8-2000, the plaintiff through a notice dated 5-9-2000 forwarded under registered cover confirmed his earlier Talb dated 27-8-2000 at 9-00 a.m. followed by institution of suit for pre-emption before the learned trial Court on 13-9-2000, which formed part of the record and proceedings of the Court, were taken into . consideration by the learned Single Judge of the Lahore High Court, while arriving at the conclusion to the effect that the date of Talb-i-Muwathibat made before the notice and institution of suit was proved by the statement on oath, however, the date was mentioned as 27-9-2000 by the plaintiff in his statement recorded before the learned trial Court was a mere slip of tongue. The learned counsel for the appellant has vehemently argued that the findings of the facts recorded by the two Court below were disturbed by the learned Single Judge in Regular Second Appeal without any reason and justification by misreading and non-reading of the evidence and record. On the other hand, the learned counsel for the respondent has supported the impugned judgment of the learned Single Judge in the High Court. He contended that the learned High Court has reversed the concurrent findings of the two learned Courts below as the entire record and evidence was examined in its proper perspective.

4. The question of any interpretation of evidence contrary to the record of proceedings in Court merely on the basis of a slip could not be upheld. The judicial record of the Court shows the Institution of suit on 13-9-2000 after making Talb-i-Ishhad through registered notice dated 5-9-2000 duly proved before the trial Court but this evidence and the statement of the plaintiff supporting his Talb-i-Muwathibat were ignored by both the forums below. Both the trial Court as well as the appellate Court overlooked the fact, the date of making Talb-i-Muwathibat was clearly mentioned as 27-8-2000 that on the basis of the evidence and the record of the case no other view could be taken. The learned Single Judge of the Lahore High Court rightly rectified this error in his judgment and treated the date mentioned as 27-9-2000 to be a slip of tongue. There is no misreading, non reading or mis-appreciation of the evidence and record in the impugned judgment. The view taken by the learned Single Judge of the Lahore High Court, while reversing the concurrent findings of the two Courts below on the ground that they were contrary to the evidence on record and as such erroneous does not call for any interference.

5. For the foregoing reasons, we do not find any merit in this appeal, the same is dismissed with no order as to costs. S.A.K./M-17/SC Petition dismissed.