P L D 2004 Supreme Court 499 (PLP)

The respondents Maqbool Hussain and others claimed their preferential right to purchase the suit‑land being the collaterals of the vendors, therefore, they instituted suit for possession through right of pre‑emption on 13‑5‑1974 in the Court of Senior Civil Judge, Multan. The suit‑land purchased by Mst. Umat Ullah was subsequently transferred by her in favour of her daughter Mst. Farrukh Jabeen (appellant). After filing of the suit when this fact came to the notice of respondents they impleaded the appellant as one of the defendants. The suit was contested by the appellant. Learned trial Court framed issues on 10‑1‑1975. However, after impleadment of appellant two additional issues were also framed. After recording evidence and observing procedural formalities learned Senior Civil Judge decreed the suit vide judgment, dated 20‑7‑1981 in favour of the respondents. Learned District Judge in proceedings of first appeal and High Court in R.S.A. No. 1.24 of 1982 upheld the judgment/decree of the trial Court. As such instant proceedings have been filed. PRECISE FACTS OF C.R.P. No. 277 OF 2000 IN CIVIL APPEAL No. 640 OF 1994 Bashir Ahmad and Muhammad Amin sons of Sardar Bakhsh owners of land measuring 118 Kanals 17 Marlas situated in village Kirpalpur of Tehsil and District Multan sold their property vide Mutation No.260 sanctioned on 15th May, 1973 to Mst. Umat Ullah wife of. Ghulam Shabbir against a sale consideration of Rs.77200. The respondents claimed possession of the property through right of pre‑emption by filing a suit on 13‑5‑1974 in the Court of Senior Civil Judge Multan. Their claim was that they have preferential right to purchase this property being the collaterals of the vendors. After filing of the suit it transpired that original purchaser Mst. Umat Ullah had transferred the land, subject‑matter of proceedings in favour of her daughter Mst. Farrukh Jabeen, the appellant, as such she was also impleaded as one of the defendants in the pre‑emption suit. In the written statement claim of the pre‑emptors was vehemently repudiated by appellant and Mst. Umat Ullah. Learned trial Court framed issues arising out of‑pleadings of the parties on 11‑12‑1974. However, after impleadment of appellant Mst. Farrukh Jabeen as defendant an additional issue was also framed on 26th May 1976. Learned trial Court after observing codal formalities vide judgment, dated 20‑7‑1981 decreed the suit. First appeal filed by appellant before the District Judge Multan was dismissed on 1‑5‑8‑1982. The appellant preferred second appeal before the High Court, which was also dismissed by means of impugned order, dated 18‑7‑1992.

3. Learned counsel contended that petitioner before the High Court raised following contentions in support of her case. "On behalf of the appellant their learned counsel Mr. M.A. Khan Burki, Advocate, urged that:‑‑ (1) Closing of defendants evidence under Order XVII, Rule 3, C.P.C. was not warranted by procedural law and was an act in clear excess of jurisdiction. (2) Without an opportunity for giving rebutting evidence taken from the plaintiffs after close of defence could not have been looked into and relied upon by the Courts below:‑‑ (3) Pedigree‑tables Exhs. P1 and P2 did not connect the plaintiffs generally with the line of vendors; (4) Statement of Muhammad Jaffer D.W.1 in cross‑examination conceding relationship of the plaintiffs‑pre‑emptors to the vendors was not binding upon defendants‑appellants. In this behalf learned counsel relied upon the case reported in AIR 1941 Lahore

55. But in the judgment under review it has been observed as under:‑‑ ..... Besides these observations we have also examined with the assistance of learned counsel for the respondent the memo of appeal filed before the District Judge and the learned High Court in regular first and second Appeals. Surprisingly before both the forums the impugned judgments and decrees passed by Civil Judge were not attacked on the strength of the arguments that the evidence of appellant was closed unlawfully in purported exercise of jurisdiction under Order XVII Rule 3, C.P.C. by the trial Court inasmuch as it was plaintiffs/respondents to record their statements after the completion of evidence of appellants/defendants. Therefore he contended that it is established that one of the points on which petitioner's appeal was dismissed was duly noted by the learned High Court in its order, dated 18th July, 1992 as such error apparent on the face of record in the judgment under review warrants interference under Article 188 of the Constitution of Islamic Republic of Pakistan in the interest of justice. He also stated that there was no need to make request for enlargement of the scope of leave granting order because vide order dated 30th April, 1994 leave was granted on one of the points noted by the High Court, therefore, on this score as well judgment under review deserves to be recalled.

4. On the other hand learned counsel appearing for respondents contended that before the First Appellate Court i.e. District Judge no efforts were made to challenge the judgment of the Civil Judge on the ground that the trial Court closed the side of petitioner/defendant unjustifiably. Besides it D.W.1 Muhammad Jaffar who appeared on behalf of petitioner had proved relationship of being collateral between the respondents/plaintiffs and vendors, therefore, judgment under review being just and proper does not suffer from error on record warranting its review as per law.

5. We have heard learned counsel for the parties and have examined the judgment under review carefully including order, dated 30th April, 1994 whereby leave to appeal was granted to examine contention of petitioner's counsel that "pedigree‑tables (Exh. P1 and P2) do not connect the pre‑emptor and vendor".

6. Learned counsel emphasized that petitioner was not afforded sufficient opportunity to lead evidence and her side was closed contrary to accepted principle i.e. extreme measures under Order XVII Rule 3, C.P.C. should not be applied unless the Court is satisfied that the party responsible to produce evidence is causing delay intentionally with a view to defeat the ends of justice, therefore, she could not prove her assertion which has been noted in leave granting order.

7. On the other hand learned counsel for the respondents contended that petitioner intentionally caused delay in producing her evidence, therefore, the trial Court having left with no option exercised its jurisdiction under Order XVII, Rule 3, C.P.C. on 20th February, 1980 in pursuance whereof petitioner's side was closed d at this stage objection being raised is not available to her, particularly for the reason that it was not raised seriously before the First Appellate Court.

8. Before dealing with the arguments of both the sides we deem it necessary to note here that petitioner produced her witnesses on some of the dates of hearing but recording of their statements was postponed on account of intervention of the respondents' counsel for one or the other reason including the one that she should produce her entire evidence. In the meantime, case was transferred to another Court and before the transferee Court the petitioner got recorded statement of one of her witnesses and petitioner's side was closed for evidence by the Court and A case was fixed for evidence of the respondents/plaintiffs in rebuttal for 6th April,, 1980, without affording opportunity to her for recording her own statement because if the trial Court was at all of the opinion that ` closing of the side of petitioner is essential in the interest of justice then at least an opportunity should have been afforded to petitioner to record her own statement so that she could support her case, including denial of relationship of pre‑emptor and vendor vide pedigree‑table (Exh. P1 and P2). It may be noted that on 12th April, 1977 few documents were tendered on behalf of the respondents/plaintiffs including pedigree‑tables, which were shown to have been marked as Exhs.P1 and P

2. Respondents /plaintiffs did not enter into witness‑box to make statement in support of their case particularly on the issue onus of which was upon them including the relationship between them and vendor, therefore, under these circumstances petitioner/defendant had a fair chance to rebut the case of respondents/plaintiffs. It is equally important to note that respondents/plaintiffs side for producing evidence in rebuttal was also closed on 21st March, 1981 and case was fixed for arguments. In the meantime, surprisingly a mutation was brought on record on 1st July, 1981 without seeking permission from the Court. Later on, a fresh, opportunity was afforded to the respondents/plaintiffs for producing evidence in rebuttal. As such the attorney of the respondents/plaintiffs' was examined on 20th July, 1981. It is important to note that he deposed nothing in respect of the issues burden of which was upon them except that "the sale price mentioned in `Intiqal` of Rs.7,200 is accepted". Thereafter, the suit was decreed. These facts have been noted to point out that on one hand learned Trial Court had shown haste in closing the side of petitioner even without realizing that as a matter of right she was entitled to make her own statement in support of her contentions, and on the other hand Court has shown concessions to the respondents/plaintiffs to tender mutation in their favour after closing their affirmative evidence and without any request on their behalf to produce additional evidence. Above all, after having closed the side of the respondents/plaintiffs they were given another chance to make their statement in rebuttal. It may be noted that for such reason when the Court had accepted a mutation in additional evidence and thereafter had recorded the statement of the respondents /plaintiffs in rebuttal, the petitioner had a legitimate right to avail an opportunity of producing evidence m support of her contentions, as held in Khalil Ahmed v. Australasia Bank Ltd. (1979 CLC 494), Murid Hussain v. Muhammad Lal (1987 CLC 101) and Nasir Ahmed v. District Judge, Multan (PLD 1992 Lahore 92).

9. When we confronted to the learned counsel for respondents/ plaintiffs with the above situation he stated that the objection being raised by the petitioner is highly technical and even if on this score interference is made she would not be in a position to improve her case except that the parties will suffer for another 5‑10 years rigors of litigation. At this stage, it was pointed out to him that the learned High Court had also failed to examine that relationship between the pre‑emptor and vendor being collateral had not been proved despite the fact that this question was specifically raised before it because pedigree‑tables (Exhs.P1 and P2) have not been proved on record in view of the judgments reported as Rehman v. Noora (1996 SCMR 300) and Farrukh Jabin v. Maqbool Hussain (2001 SCMR 820). His submissions were that since one of the witnesses of petitioner i.e. D.W. Jaffar Khan had admitted the relationship between the vendors and vendee in his cross‑examination, therefore, there was no need to prove the same. We are not inclined to accept this argument for the reason that the evidence given by one of the witnesses of defendant in cross‑examination would not bind the petitioner in view of the judgment reported as Jalal Din v. Nawab (AIR 1941 Lahore 55) and secondly for the reason that in cross examination if an obligating statement is made by a witness, it would be treated only as inferential evidence. Thus taking judicial notice of the facts noted hereinabove we are of the opinion that the petitioner/defendant at least had a right to get recorded her statement in support of her claim either before recording of the statement in rebuttal of one of the respondents/plaintiffs who appeared as attorney of other or after it. On this a suggestion was given, to the counsel for petitioner to avail an opportunity of recording of her statement without producing any further evidence because of the fact that the Court had closed her side under Order XVII Rule 3, C.P.C. on 20th February, 1980. On this he agreed for remand of the case to the trial Court for providing opportunity to petitioner to record her statement and then to pronounce the judgment. In our opinion remand of the case to the trial Court would create another situation of agony for both the sides, therefore, to meet the ends of justice it would be appropriate to remand the case to the learned High Court for deciding the case afresh after recording the statement of petitioner/defendant either itself or getting it recorded by the trial Court and on receipt of the same, decide the appeals afresh. Thus for the foregoing reasons, judgment under review, dated 20th November, 2000 passed in Appeals No. 640 of 1994 and 1136 of 1997 is recalled, as a consequence whereof appeals are partially accepted and impugned judgment, dated 18th July, 1992 passed by the learned High Court is set aside. Cases are remanded to the High Court for disposal of appeals afresh. No order as to costs. S.A.K./F‑5/S Case remanded.