2013 PLP 2566 (YLR)

ROOH-UL-AMIN KHAN, J.

Ghulam Hussain, petitioner/plaintiff, through the instant revision petition, has called in question the concurrent judgments and decrees dated 21-4-2011 and 24-4-2012 passed by the learned two courts below, whereby his suit for pre-emption against the respondents/defendants was dismissed.

2. Briefly stated facts of the case are that the plaintiff had sued the respondents/ defendants in respect of the suit-land fully described in the plaint claiming superior right of pre-emption on the basis of co-sharership, contiguity, immunities and appendages. The suit was hotly contested by the defendants who filed written statement and the divergent pleadings of the parties gave rise to the framing of eight issues. The parties produced evidence which they wised to adduce and the learned trial Judge on evaluating the same in the light of arguments of the learned counsel for the parties dismissed the suit of the plaintiff vide judgment and decree dated 21-4-2011. Feeling aggrieved, the plaintiff challenged the said findings of the learned trial Court through an appeal along with an application for additional evidence, but the same was also dismissed by the learned Additional District Judge-V D.I.Khan, vide judgment and decree dated 24-4-2012. Still not contented with the concurrent findings of the learned two courts below, the plaintiff/petitioner has now assailed the same through the instant revision petition.

3. Arguments heard and record perused.

4. The petitioner claims that on 26-2-2006 at 10-00 a.m., he got knowledge about the sale transaction in his own baithak situated in Mouza Hayat Buchra, District D.I.Khan through Ghulam Hussain son of Ghulam Siddique and there and then he declared his intention for pre-empting the sale transaction. Thereafter, on 7-3-2006, he sent the notice of Talb-e-Ishhad to each of the respondents duly attested by two truthful witnesses, namely, Ghulam Hussain and Afzal. The defendants/respondents in their written statement categorically denied the performance of aforesaid talbs in accordance with the requirements of section 13 of the N.-W.F.P. Pre-emption Act, 1987.

5. In support of the plaint, the petitioner/plaintiff appeared as P.W.3 and stated that after 10/12 days of Talb-e-Muwathibat, he came to `Kachery' and scribed the notice through Karim Nawaz Baluch, Deed Writer. Similar statement was made by Ghulam Hussain son of Ghulam Siddique that they came to the District Courts D.I.Khan and prepared the notice through the Deed Writer. Thereafter, the plaintiff went towards the post-office while they returned home. Both the witnesses are silent about sending the notice of Talb-e-Ishhad to the respondents/defendants. In these eventualities, it was imperative upon the plaintiff to had produced the post-man to prove the notice of Talb-e-Ishhad. By now it is well-settled by the Honourable Supreme Court of Pakistan that the pre-emptor is under obligation to prove the service of notice of Talb-e-Ishhad by producing the concerned post-man when receipt of such notice is denied by the vendee/defendant. In the instant case, the petitioner/plaintiff has failed to substantiate his plea regarding the performance of mandatory legal obligations. In this background of the case, it can be safely concluded in the light of dictum of the honourable Supreme Court of Pakistan in the cases titled Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) and Bashir Ahmad v. Ghulam Rasool (2011 SCMR 762), that the petitioner/ plaintiff has failed to prove the performance of Talb-e-Ishhad in accordance with law. So, both the courts below have properly appreciated the evidence brought on record and law on the subject.

6. The argument of the learned counsel for the petitioner that the learned appellate court has not decided the application of the petitioner for production of additional evidence, i.e. post-man, is un-persuasive. The record depicts that ample opportunities were provided to the parties by the trial Court for leading their evidence which they did avail and, thereafter, the case was decided on merits. The petitioner/plaintiff was required to have produced all the required evidence before the trial Court in support of his case. The application of the petitioner for production of additional evidence at such a belated stage, and that too of the official of the post-office regarding notice of Talb-e-Ishhad which has been categorically denied by the respondents/defendants in their written statement, would amount to filling of lacuna which is not permissible under the law. No doubt additional evidence can be allowed in order to allow a party to fill-up the weaker part of his case, or to fill-up omissions, but it cannot be allowed to fill the lacuna in the case. In this respect, the honourable Supreme Court of Pakistan in the case of Muhammad Yousuf v. Mst. Maqsooda Anjum (2004 SCMR 1049) has held as under:-- "It is well-settled that additional evidence cannot be received to fill up the lacuna or provide for deficiency in the case of a party. It is also well-settled that the additional evidence is permitted if the Court needs the same for purposes of disposal of the case. By requesting the court to permit him to produce private documents as additional evidence, the petitioner was clearly trying to fill up a lacuna and provide for the deficiency in the case. This cannot be permitted. If petitioner's counsel has been negligent, as contended, the petitioner may have to proceed against the counsel concerned. However, this is not a good reason for grant of permission to adduce additional evidence". Similarly, the Apex Court of Azad Jammu & Kashmir in the case of Zaraitullah Khan v. Fazal Ahmad and 29 others, reported as (PLD 2004 Supreme Court(AJ&K) 35, has observed as follows:-- The additional evidence can be allowed only where:-- (i) the trial Court has improperly refused to admit the evidence which ought to have been admitted or; (ii) the Appellate Court requires such document or witness and cannot pronounce judgment without such additional evidence, Or (iii) the Appellate Court requires such evidence for any other substantial cause. The additional evidence cannot be allowed in order to allow the parties to patch up the weaker parties of its case, or fill up omissions or to enable it to raise new point. The law of production of additional evidence in appellate court is found in Rule 27 Order XLI of Civil Procedure Code, and the same is attracted if some inherent lacuna or defects become apparent. The test is whether appellate court can pronounce judgment satisfactorily without taking into consideration the evidence sought to be produced."

7. Learned counsel for the petitioner failed to show any misreading or non-reading of evidence or any illegality, irregularity in the concurrent findings of the learned two courts below so as to call for interference by this court in exercise of its revisional jurisdiction under section 115, C.P.C.

8. Even otherwise, in view of the dicta handed down by the honourable Apex Court in the case-law reported as 2002 SCMR 1114 and 2007 SCMR 368, the concurrent findings of the two courts below on question of facts, cannot be set at naught by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C., unless it is established through cogent evidence that the same are patently illegal, erroneous, fanciful or has resulted into great miscarriage of justice. No such infirmity was point out by the learned counsel for the petitioner in the case in hand.

9. In wake of the above discussion and deriving wisdom from the case-law of the Honourable Supreme Court of Pakistan referred above, I find no merit in this revision petition which is accordingly I dismissed leaving the parties to bear their own costs. SAK/286/P Revision dismissed.