2011 MLD 778 (PLP)

MUHAMMAD NASEEM AKHTAR KHAN, J.

I intend to also dispose of Civil Revision No.41-2007/BWP along with this civil revision because both have arisen from the orders dated 30-9-2006 and 8-12-2006 passed by Civil Court during proceedings of the civil suit titled "Mian Muhammad Abbas v. Dr. Shabbir Ahmad and others suit for possession through pre-emption for the land measuring 200-kanals situated in Chak No.43/DNB, Tehsil Yazman, District Bahawalpur according to Khata No.36/34, Square No.16, Khatooni Nos.297 to 301 according to register haqdaran zameen for the year 1996-97 (hereinafter called the property in dispute), which was sold through Mutation No.208 dated 10-1-2002 for a consideration of Rs.60,00,000.

2. The trial Court through order dated 30-9-2006 dismissed two applications, one filed by the petitioners for abandoning some preliminary objections taken in written statement and deletion of the corresponding issues and the other filed by' the respondent for production of a document (PT-I) as additional evidence. The petitioners challenged this order to the extent of their application (under Order XIV Rule 5, C.P.C.) through Civil Revision No.492-2006/BWP. Afterwards the ' respondent again filed an application under Order XIII Rule 2, C.P.C., which was accepted by the trial Court vide order dated 8-12-2006 and this order was challenged by the petitioners through Civil Revision No.41-2007/BWP.

3. Arguments heard. Record perused.

4. After considering the respective contentions of the parties it is observed that the suit for pre-emption was filed on 7-5-2002 which is still pending adjudication before the Civil Court. To avoid further delay in final disposal of the suit for possession through pre-emption and place 2 the parties on a right path, following issues are framed arising out of pleadings of the parties keeping in view the request for deletion of the issues, which will be decided by the trial Court on the basis of evidence produced by the parties: (1) Whether the plaintiff has superior right of pre-emption qua vendees/defendants over the suit land? OPP (2) Whether 'the plaintiff has completed three requisite demands according to law of pre-emption? OPP (3) What is the actual sale price of the property in dispute and whit amount was actually paid to the vendor? OP-Parties (4) Whether the defendants are entitled to compensatory costs. If so, to what extent? OPD (5) Whether the plaintiff is entitled to a decree for possession through pre-emption? OPP The remaining issues are deleted and the same will not be even considered by the trial Court.

5. As far as the production of document PT-I and order dated 8-12-2006 is concerned that is excess on the part of the trial Court. The earlier application for the same document was dismissed on 30-9-2006 but the latter, application for the same document was accepted vide order dated 8-12-2006. The learned counsel for the parties have referred along list of case law i.e. ten citations from side of the petitioners. and five case law from side of the respondent stressing on the principle of "res judicata" and difference of the petitions i.e. one under Order XVIII, Rule 1 and the other under Order XIII, Rule 2, C.P.C. I do not want to mention all the above stated case law in the body of this judgment. However, I have gone through all the same. The document PT-I although a public document but is not necessary for just and effective decision of the case and the same is also an afterthought and just a device to fill up the lacunas on the part of the respondent.

6. In these circumstances mentioned above both the revision petitions are accepted and the order dated 30-9-2006 to the extent of deletion of issues is 'set aside and the order dated 8-12-2006 for permission to produce document PT-I is also set aside. This Court has framed above mentioned issues which will be decided by the learned trial Court on the basis of evidence produced by the parties. Since the issues having onus of proof on the petitioners have been deleted, so there is no occasion for production of rebuttal evidence. It is stated that the pre-emption suit is fixed before the trial Court for 26-10-2010 so the parties are directed to appear before the trial Court on 26-10-2010 along with copy of this judgment and the learned trial Court will decide pre-emption suit before proceeding on winter vacation positively. A copy of this judgment be sent to the trial Court immediately for information. A.R.K./S-248/L Revisions accepted.