2011 PLP 516 (CLC)

MIFTAH-UD-DIN KHAN,J.

Petitioner Khan Afsar instituted a pre-emption suit in respect of the suit property measuring 6 kanals, 14 marlas against the respondent which after framing issues, recording evidence and hearing learned counsel for the parties was dismissed by the learned Civil Judge-VI, Haripur vide judgment and decree dated 19-10-2002 and appeal of the present petitioner against the aforesaid judgment was also dismissed on 22-7-2005 by learned Additional District Judge-II, Haripur. Aggrieved from the concurrent findings of both the courts below the petitioner has lodged the present revision petition and has also applied for additional evidence.

2. Mr. Khurshid Khan, Advocate, learned counsel for petitioner contended that Talb-i-Muwathibat and Talb-i-Ishhad were proved in accordance with law by producing notice of Talb-i-Ishhad and furnishing, the explanation that the informer Wali Muhammad has died while where about of other witness of Talb-i-Ishhad namely Gohar Rehman is not known and that the veracity of the witness produced by petitioner was neither challenged nor cross-examined on relevant points, therefore, their statements as well as the testimony of petitioner in respect of Talb-i-Muwathbat and Talb-i-Ishhad shall be deemed to have been admitted but both the courts below have wrongly and illegally dismissed the pre-emption suit of the present petitioner. Further submitted that learned appellate Court has not given findings on each issue, which is contrary to the provisions of Order XX, Rule 5, C.P.C. He further submitted that admittedly Wali Muhammad informer is dead and his son namely Matloob Khan is a necessary witness to testifying in this connection as secondary evidence, therefore, the petitioner be allowed to produce the aforesaid witness as additional evidence in the present case. He placed reliance on 2003 CLC 504, PLD 2002 Lahore 48, 2000 CLC 296, 2004 CLC 555, PLD 2005 Karachi 478 and PLD 2001 Lahore 9 in support of his contention.

3. Mr. Mehboob Ahmad, Advocate, learned counsel for respondent contended that the name of informer as well as time and place of Talb-i-Muwathibat was not mentioned in the original plaint filed on 12-8-1994 and this lacuna was filled through an illegal amendment in amended plaint on 22-7-1996. He Further submitted that under the law the pre-emptor is bound to prove the performance of Taibs in accordance with law even if the vendee/defendant has not raised any objection in this connection. He further submitted that in the present case the respondent categorically refused the receipt of any notice, therefore, the burden of proof was on the petitioner to prove that Talb-i-Muwathibat and Talb-i-Ishhad were duly performed. He Further submitted that date time and place in respect of Talb-i-Muwathibat were not mentioned in the original plaint and even in the notice of Talb-i-Ishhad Exh.P.W.5/1. He lastly argued that neither the informer nor two truthful witnesses in respect of Talb-i-Ishhad were produced by petitioner before the learned trial Court, therefore, both the courts below were justified to dismiss the suit or the present petitioner. He further submitted that through amendment at a belated stage in respect of a fact which was already available to the petitioner before the trial Court and appellate court, the petitioner cannot be allowed to fill up the lapses and lacunas in the evidence of petitioner. He placed reliance on PLD 2010 Lahore 341, 2009 SCMR 488, PLD 2003 Peshawar 53 and 2008 SCMR 269.

4. First I would like to take up the application of petitioner for additional evidence under Order XLI, Rule 27 read with section 151, C.P.C. the request of the petitioner for additional evidence is not covered by rule 27(a)(b) of Order XLI which read as under: "27(a) the court from whose decision the appeal is preferred has refused to admit evidence which ought to have been admitted." The fact of death of Wali Muhammad was already in knowledge of the petitioner, which is not at all the discovery of a new fact, which came to the knowledge of petitioner during revision after the expiry of more than eleven years. No such request was made before the trial Court or appellate court and no plausible or substantial cause in this connection has been shown by the petitioner, which clearly operates as waiver on the part of petitioner. Thus the request for additional evidence at such a belated stage is not only wrong, improper and unjustified but also amounts to fill lapses in evidence, hence disallowed.

5. The contention of learned counsel for petitioner has got no force because under the law the pre-emptor is bound to mention the name of informer, date, place and time in plaint in respect of Talb-i-Muwathibat and also to mention the same in notice of Talb-i-Ishhad. The pre-emptor under section 13(3) of the N.-W.F.P. Pre-emption Act is also bound to prove execution and attestation of this notice by two truthful witnesses confirming his intention to exercise the right of pre-emption. In the present case initially the plaint was presented on 12-4-1994 and in para two of the plaint name of informer, time, place and name of witnesses of Talb-i-Muwathibat was not mentioned. Notice of Talb-i-Ishhad was executed on 11-8-1994 and without confirming its receipt by respondent pre-emption suit was filed on next date 12-8-1994. It is not understandable as to how in one day the notice was delivered by post man to respondent and AD card was returned to the petitioner on the same date. In notice of "Talb-i-Ishhad Exh. P. W .5/ 1 the petitioner did not mention the name, of informer, date, time and place of Talb-i-Muwathibat which was necessary in. view of the case-law reported in 2009 SCMR 488.

6. No doubt through amended plaint on 22-7-1996 the petitioner succeeded to mention the name of informer and time in para-2 of amended plaint but it is beyond comprehension as to how the petitioner all of a sudden remembered the date and time of performance of Talb-i-Muwathibat, which was not known to him at the time of presenting initial plaint on 12-8-1994. It is not known as to whether the so called informer Wali Muhammad was alive on 7-9-1994 or not and it is also not clear as to when the so called informer has died. It appears that the lacuna of non-mentioning the name of informer and time of Talb-i-Muwathibat was filled after lapse of about two years by introducing the name of a dead informer and false time of Talb-i-Muwathibat just to fulfill requirement of Talb-i-Muwathibat by hook or by crook. Thus both the courts below have rightly decided that petitioner has failed to prove the performance of talbs in accordance with law.

7. As the real question in controversy involved in the present case was non-performance of talbs in accordance with law by the petitioner which was discussed by the learned appellate Court, therefore findings on remaining issues was not at all necessary and remand of the case on this score is totally wrong and unjustified. Similarly the contention of learned counsel for petitioner that two witnesses of Talb-i-Muwathibat and Talb-i-Ishhad were dead, therefore, evidence of single attesting witness of notice of Talb-i-Ishhad was sufficient to prove the notice of Talb-i-Ishhad cannot be accepted in view of the case law reported in 2003 CLC 504 and relied upon by the petitioner. Admittedly in the present case photocopy of notice of Talb-i-Ishhad was produced and neither the author of the notice nor two truthful witnesses of the notice were produced. This Court in case-law reported in 2004 YLR 115 has held in section:- "13(3)-Non-production of second witness of Talb-i-Ishhad in court

Effect

Notice of Talb-i-Ishhad is to be attested by two truthful witnesses--Pre-emptor was duty bound to prove to the satisfaction of trial Court that Talb-i-Ishhad was made in presence of two truthful witnesses

Such requirement of law being statutory, none of witnesses of Talb-i-Ishhad could be dispensed with

None production of second witness of Talb-i-Ishhad was thus, fatal to pre-emptor's case

Plaintiffs having failed to perform requisite talbs, their right to life suit was extinguished--"

8. As the petitioner has failed to prove the performance of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law, therefore both the courts below after proper appraisal of evidence have rightly dismissed the pre-emption suit as well as appeal of the present petitioner. Thus the concurrent findings of both the Courts below in respect of factual controversy warrants no interference in exercise of revisional jurisdiction by this Court. The present revision petition is hereby dismissed. S.A.K./33/P Revision dismissed.