1991 PLP 1181 (SCMR)

Muhammad Aslam Chishti, Advocate Supreme Court and M.K.N. Kohli, Advocate‑on‑Record for Appellants. M. Zaffar, Advocate Supreme Court and Tariq Mehmood, Advocate‑on- Record for Respondents. Date of hearing: 5th June, 1990. ABDUL KADIR SHAIKH, J.‑‑‑This appeal is directed against the judgment of Baluchistan High Court dated 31‑10‑1988, whereby a Constitution Petition filed by the first respondent herein was allowed with the result that the decree passed in appellants' favour in the suit filed by them, which was upheld in the revision application, was set aside and the suit was dismissed. The facts of the case briefly stated are as under:‑‑ Haji Saleh Muhammad, appellants' predecessor‑in‑interest, filed a Pre‑emption Suit on 14‑10‑1971 in respect of sale of tenancy rights and water, as also share in shamilat in respect of land measuring G‑1/2 acres and 3 mazigar of water situated in Mouza Sarela Qmarzai Tehsil Pishin, made by one Raza Muhammad in favour of respondent‑vendee vide mutation dated 29‑9‑1971. The suit was based on the grounds that pre‑emptor had a joint Khata and adjoining lands and there was a common watercourse between the pre‑empted land and the adjoining land of the pre‑emptor, as against the vendee, who was a complete stranger in the Mouza. Both Vendor and the Vendee, the first respondent, contested the suit. The vendor besides conceding the right of pre‑emptor did not dispute the making of demands by the pre‑emptor. During the pendency of the suit Haji Shah Muhammad died on 3‑3‑1974, whereupon on appellants' application, they were impleaded as the legal heirs of the plaintiff. The respondent did not fully participate in the proceedings in the suit, and faced with this situation the‑Tribunal called for the report of revenue officials, namely Patwari and Girdawar, and summoned them on the suit land where the Tribunal also made site inspection and ultimately by majority of 4/5th recommended that the suit be decreed on payment of Rs.24,000 being consideration for the sale of pre‑empted land. Thereupon, learned Assistant Commissioner with powers of the Deputy Commissioner vide order dated 31‑10‑1982 accepted the findings and recommendation of the Tribunal and decreed the suit. The respondent filed an appeal against the judgment and decree before the Additional Commissioner which was, however, dismissed on 24‑10‑1984 for default of the respondent in prosecuting the appeal. Respondent then filed an application for re‑admission of appeal but his request was refused by the order dated 3‑3‑1985. In the circumstances respondent filed the revision application before the Board of Revenue which was also dismissed by the order dated 31‑7‑1988. It was in these circumstances that the respondent then challenged the judgment and decree and the orders passed by the appellate and revisional authorities in Constitution Petition in the High Court which was allowed with the result mentioned above. The sole ground that prevailed with the learned Judges in the High Court in allowing the Constitution Petition was that it was not proved, that the two mandatory Talabs had been made by him, therefore the suit could not be instituted. In this connection, it was pointed out on behalf of respondent that in the written statement it had been specifically stated that the pre‑emptor had not made two Talabs but no finding was recorded either by the Tribunal or by the Assistant Commissioner in this regard. This plea found favour with the learned Judges with the result they allowed the petition and set aside the decree passed in favour of the appellants. Leave to appeal was granted by this Court to examine the question whether in the absence of framing of issue on the question of Talabs, and recording of evidence for and against the issue, the suit could be dismissed on the ground that no Talabs had been made by the pre‑emptor. Mr. Muhammad Aslam Chishti, learned counsel appearing in support of the appeal referred to the averments made in paragraph 7 of the plaint for the submission that it was specifically pleaded by the pre‑emptor that he had made the Talab and submitted that since no issue was framed on the question of Talabs, and the framing of the issue was essentially the duty cast on the Court, the High Court in exercise of the extra‑ordinary Constitutional jurisdiction should not have interfere, with the decree in appellants' favour which was upheld upto the final stage in revisional jurisdiction. Learned counsel also referred to the following portion of the judgment of the Board of Revenue by which the decree in appellants' favour was upheld:‑‑ "Having considered the arguments of the learned counsel I am of the view that the petitioner has no right to claim relief in view of his persistent attitude to prolong and delay the case on one pretext or the other. The petitioner after having failed in various forums on appeals and revisions decided to further prolong the matter by not appearing before the Tribunal and the Courts. Since the matter had considerably been delayed, therefore, the Tribunal was completely justified to give its findings on the basis of available record and other material. The respondents were present and were heard. The petitioner avoided and could not be heard. The petitioner even did not appear before the Assistant Commissioner when he made the impugned order on 31‑10‑1982. The contention of the counsel for the petitioner that since he was not heard and no evidence was recorded, therefore, the order of the lower Court was illegal does not have any merit. Even before the appellate Court the petitioner has been showing the same negligence. The perusal of the Order‑Sheet dated 19‑8‑1984 and 19‑9‑1984 clearly reflect the attitude of the petitioner and his counsel towards prosecution of the case. On 19‑8‑1984 the counsel for respondents was present but the appellant was absent in the footnote to the Order‑Sheet it has been stated that the appellant's counsel came late and was informed to appear on 19‑9‑1984. On 19‑9‑1984 again appellant and his counsel were absent whereas the respondent and his counsel were present. Again in the foot note it has been stated that the counsel of the appellant came late and informed to appear on 24‑10‑1984. On 24‑10‑1984 the appeal was dismissed in default as the petitioner and his counsel were both absent, Under Article 1 of the Limitation Act application for restoration could be made within 30 days but in the present case the restoration application was made to the appellate Court almost after 4 months. No good ground had been given for not riling the restoration application in time. In view of the neglect of the petitioner to prosecute his case properly he is debarred from claiming any relief on the ground stated in his petition." After having heard the learned counsel in the light of the record before us, we are clearly of the view that since the pre‑emptor had specifically mentioned in the plaint itself regarding the Talab, and no issue in this regard was framed in the suit for which no fault can be found with the pre‑emptor or his legal representatives who prosecuted the suit. and suit had been decreed ex parte against the respondent, the High Court in exercise of Constitutional jurisdiction was not justified to take the view that the formalities of law were not strictly observed, in that, the Talabs not having been clearly mentioned in the plaint, suit could not be instituted. However, we wholeheartedly agree with the High Court that it was necessary for the plaintiff to prove the Talabs in accordance with the Muhammadan Law, and, therefore, while setting aside the judgment of the High Court, we remand the suit to the respondent 2 for fresh trial in accordance with law. In the circumstances the parties are left to bear their own costs. AA./Z‑116/S Case remanded.