P L D 1987 Peshawar 40 (PLP)

This revision petition is directed against the judgment and decree dated 22‑7‑1984, passed by the learned Additional District Judge, Mansehra, whereby the appeal filed by Fazal Rabbi, petitioner herein, against the judgment and decree passed on 2‑5‑1982 by the Civil Judge, Mansehra, was dismissed.

2. The facts of the case, as briefly stated, are that Khadi Khan got transferred in his favour land measuring about 4 Kanals, out of Khasra No. 2172, from one Mst. Bibi Tasleem by way of exchange through deed earning No. 275, attested on 27‑5‑1981, and in lieu thereof gave that much area to her out of Khasra No.

112. The transfer thus made was pre‑empted Fazal Rabbi who alleged that it was that of sale and fictitiously shown to be that of an exchange. He further alleged that for the transfer of the suit and in‑ his favour Khadi Khan defendant paid Rs. 1,000 to the vendor as ale consideration. He claimed his pre‑emptive right on the grounds of co‑shareship, participation in the immunities and appendages of the suit land and contiguity thereto.

3. The suit was resisted by the vendee‑defendant on many grounds, which gave rise to as many as 9 issues framed by the learned trial Judge.

4. The learned trial Judge, vide judgment and decree dated i‑5‑1982, dismissed the suit because the transaction in suit, in his view, was that of exchange and not of sale.

5. The appeal filed by the pre‑emptor met the same fate, as is apparent from the judgment and decree dated 22‑7‑1984 passed by the learned Additional District Judge, Mansehra.

6. The pre‑emptor (Fazal Rabbi) has come to this Court in revision against the aforesaid two decrees of the learned Courts below.

7. Mr. Adam Khan Jadoon, Advocate appeared on behalf of the petitioner and Mr. Hayat Ali Shah, Advocate appeared on behalf of the respondent.

8. The only point urged by the learned counsel for the petitioner before me is that his client (petitioner/plaintiff) had on 24‑4‑1984 filed before the learned appellate Court an application for allowing him to produce additional evidence, which was replied to by the opposite party, and the learned appellate Judge without deciding that application and without even adverting to it in the impugned order disposed, of appeal on merits, thereby committing illegality which could not be condoned. In support of his arguments the learned counsel relies on P L D 1983 Lah. 349.

9. The learned counsel representing the respondent contends that no exception can be taken to the impugned order of the learned Additional District Judge, Mansehra as the petition for producing additional evidence was not pressed before him at the time of arguments.

10. I find substance in the contention of the learned counsel for the respondent. It is true, as laid down in the law cited by the learned counsel for the petitioner, that if a petition made by a party to appeal for producing additional evidence is pressed then the appellate Court is under legal obligation to first pass order thereon and the appeal pending before it can subsequently be disposed of in the light of that order, but when the petition so made is not pressed by the party making the petition, or by the counsel appearing on his behalf, the Court, in my humble view, is under no legal obligation to first dispose of that petition by a. distinct or separate ,order, or advert to it in the order disposing of main appeal. In the case before me, while disposing of appeal on merits, the learned Additional District Judge clearly mentioned in paragraph No. 5 of the judgment, impugned herein, that the only point urged before me was whether the transaction in question was that of sale, and this clearly indicates that no other point was pressed before him, including the one relating to production of additional evidence. That being so, the authority referred to by the learned counsel for the petitioner is not attracted to the facts of this case.

11. No other point has been urged before me.

12. This revision petition, being without merit, is dismissed with costs. A. A ./493/P Revision dismissed.