1987 PLP 2151 (CLC)

‑‑‑ Act or omission of Court not to prejudice a litigant. (d) Punjab Pre‑emption Act (I of 1913) ‑‑‑ S. 15‑‑Constitution of Pakistan (1973), Art. 203‑F‑‑Right of pre‑emption based on pre‑emptor being collateral to vendor‑‑Effect of Supreme Court (Shariat Appellate Bench) judgment (P L D 1986 SC 360) wherein right of pre‑emption on basis of being collateral to vendor was declared to be inconsistent with injunctions of Islam‑ Pre‑emption suits filed before target date of 31‑7‑1986 were entitled to be heard and determined in accordance with law as same existed before such declaration as per rule laid down by Full Bench of High Court in P L D 1987 Lah.' 358‑‑Law laid down by Supreme Court in 1987 SCMR 1206 also envisaged that said declaration of repugnancy would also not affect suits decided before target date i.e. 31‑7‑1986. Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and others P L D 1987 Lah. 358 and Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima 1987 SCMR 1206 ref. (e) Civil Procedure Code (V of 1908)‑‑ ‑‑‑ S. 115‑‑Punjab Pre‑emption Act (I of 1913), S. 15‑‑Revisional jurisdiction, exercise of‑‑Concurrent findings of fact justified on record reached by two Courts below wherein no error of jurisdiction of the nature of misreading or non‑reading of evidence could be pointed out would not be interfered with, by High Court in exercise of revisional jurisdiction. Muhammad Yaqoob Sabir for Petitioner. Muhammad Din, the predecessor of the respondents, filed a suit on 15‑5‑1974 for possession through pre‑emption with regard to a sale of 25 Kanals 14 Marlas of land situated in village Chunian, District Kasur, on the grounds of his being a collateral of the vendor Nawab Din and also an owner of the estate. Both vendees contested the suit and necessary issues were set down for trial. In the course of the statement made by one of the vendees Muhammad Tufail as D.W.6, he, however, admitted both the grounds which had been urged by the plaintiff to claim superior right of pre‑emption. The plaintiff Muhammad Din died during the pending of the suit and his two sons and one daughter, respondents Nos. 1 to 3 herein, were impleaded in his stead as plaintiffs and the trial Court decreed the suit in their favour on 9‑11‑1981 upon payment of Rs.8,000 the ostensible sale‑price which was held to be proved to have in fact been paid.

2. An appeal was thereagainst filed by Muhammad Tufail one of the vendees in the District Court at Kasur wherein he arrayed the other vendee Chiragh Din on the respondent side, with the plaintiffs. The appeal came up for hearing before a learned Additional District Judge who reconsidered the evidence and, affirming the findings of the Trial Court with regard to the superior right of pre‑emption of the plaintiffs, dismissed the appeal on 28‑6‑1987 by upholding the decree of the Trial Court. The said vendee Muhammad Tufail has now come up to this Court on revision.

3. Learned counsel contends that the superior right of pre‑emption of the respondent‑ plaintiffs could not be held to have been proved for the reason that the documents produced by them in support of their claim, though duly exhibited, had not been inscribed with the particulars required to be entered under Order XIII, rule 4 of the C.P.C. and could not, therefore, be brought under consideration. This contention is only inconsequential in the presence of the statement made by the petitioner himself as D.W. 6 wherein he has admitted both the qualifications of the plaintiffs which had been urged by them in support of their superior right of pre‑emption. Although the aforenoted objection of the learned counsel with regard to the documents may not be ill‑founded, I am not persuaded to even treat those documents as inadmissible in evidence for the reason merely of the failure of the Trial Court to carry out its duty about recording the particulars on them and since the plaintiffs cannot be held anywise responsible for this omission, therefore, there is no reason to penalize them by excluding their documents with regard to, which there is no ambiguity of identification. It has been repeatedly held that an act or omission of a Court, which term also includes its officials, cannot prejudice a litigant. However, the proper observance of the requirements laid down in the Code of Civil Procedure, 1908 by the Courts in the trial of suits hardly needs any emphasis because the non‑compliance with the procedure not only results in unnecessary delays in the disposal of suits, but also leads to injustice in some cases, It has been noticed that the Presiding Officers of the subordinate Courts generally do not keep in view the instructions issued from time to time by the High Court for proper disposal of the suits. There is also a growing tendency on the part of th6 Presiding Officers to ignore even important provisions of the Code of Civil Procedure, 1908 during the trial of the suits. There is no doubt that the necessity of observance of the provisions of Order XIII, Rule 4 of the C.P.C. is in need of being impressed upon the trial Judges who are prone to be not mindful of their officials neglecting to record the required particulars on the documents as the evidence. in a suit progresses. Lapse of the trial Court in following the provisions of law is no doubt deplorable but is no more than a mere irregularity, in the circumstances of this case, therefore, as has been enjoined in section 99 of the C.P.C., it cannot result in the reversal of the decree passed in favour of the respondents because it has neither affected the merits of the case nor the jurisdiction of the Court. Contention of the learned counsel is, therefore, repelled.

4. In the end, learned counsel has also argued that the rights 6n the basis of which claim was made by the plaintiff ‑respondents have since been declared in Government of N.‑W.F.?. through Secretary, Law Department v. Malik Said Kamal Shah (P L D 1986 SC 360) to be repugnant to the injunctions of Islam. Scope of the application of the declaration made by the Shariat Appellate Bench of the Supreme Court to the pending cases came up for consideration before a Full Bench of this Court and it has been concluded in Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and others (P L D 1987 Lahore 358) that the suits filed before the target date of 31‑7‑1986 are entitled to be heard and determined in accordance with the law as it existed before the said declaration. The suit "in hand was instituted on 15‑5‑1974 and had even been decreed by the trial Court on 9‑11‑1981 in favour of the plaintiffs whereafter they, have only defended their decree in contesting the appeal thereagainst filed by the vendee. Therein they cannot be deemed to have asserted any right of pre‑emption to attract the application of the declaration of repugnancy made by the Shariat Appellate Bench of the Supreme Court. In a recent judgment reported as Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima (1987 SCMR 1206) their Lordships of the Supreme Court have also held that the said declaration dose not affect the suits decided before the target date (31‑7‑1986).. Contention of the learned counsel fails thus.

5. There is no force in this Civil Revision which stands concluded by the concurrent findings of fact justified on the record reached by the two Courts below who have not been shown to have committed any error of jurisdiction of the nature of misreading or non‑reading of evidence. Hence, dismissed in limine. A.A. /M‑330/L Revision dismissed.