2003 PLP 807 (CLC)

3. Out of the divergent pleadings of the parties, the learned Civil Judge framed as many as 10 issues, the petitioner produced six witnesses and 11 documents in order to discharge the onus of issues, which was placed upon him and the respondent produced 4 witnesses and 7 documents. However, the learned Civil Judge decree the suit in favour of the petitioner in consideration of Rs.4,46,250 vide judgment and decree dated 31-7-1994. Feeling aggrieved, the respondent filed an appeal before the appellate forum and the learned Additional District Judge, while giving his findings on Issue No.5, accepted the appeal, set aside the judgment and decree dated 31-7-1994 of the learned Civil Judge and ordered for the dismissal of the suit vide judgment and decree, dated 30-1-1996, hence the present petition.

4. The learned counsel for the petitioner has contended that the petitioner has been non-suited only on the ground that no date, time and place was given about the declarations of Talb-e-Muwathibat and Talb-e- Ishhad and the findings rendered by the learned Additional District Judge in this regard are not sustainable in law. He, while supporting the judgment and decree rendered by the learned Civil Judge, has further contended that the learned lower Appellate Court has erred in law, while setting aside the well-reasoned and speaking judgment passed by the learned Civil Judge inasmuch as the impugned judgment suffers from misreading, and non-reading of evidence. Conversely, the learned counsel, while supporting the impugned judgment has vehemently asserted that the findings rendered by the learned Additional District Judge do not call for any interference by this Court and the legal errors, committed by the learned Civil Judge, has in fact been rectified, therefore, the impugned judgment deserves to be maintained.

5. It is evident from the record of the case that while arguing the appeal, the respondent challenged the findings of the learned trial Court on Issues Nos. 4, 5 and 6, but as the findings of the learned trial Court on Issues Nos. 4 and 6 were not challenged in memorandum of appeal, therefore, the learned counsel for the respondent was confined to argue only Issue No.5. Even otherwise I find from the record that although 10 issues were framed, but the real controversy now revolves around Issue No.5 viz. as to whether the plaintiff has fulfilled the requirements of Talbs, according to law or not. As noted by the learned Additional District Judge, the petitioner/plaintiff produced P.W.1, the post-master who delivered the registered A.Ds. notice to the respondent. P.W.2 appeared as special attorney of the petitioner. P.W.3 proved that notice Exh.P.3 was written by him. P.W.4 and P.W.5 were attesting witnesses of the notice and Noor Muhammad attorney appeared as P.W.6 in rebuttal. In order to rebut the said evidence, the respondent produced D. W.1, scribe in order to prove agreement to sell between the vendor and the respondent, while Ghulam Shabbir, Sardar Muhammad and Ghulam Farid appeared as D.W.2, D.W.3 and D.W.4.

6. The solitary ground appears to have prevailed with the learned Additional District Judge, while accepting the appeal of the respondent, was that with regard to Talb-e-Muwathibat and Talb-e-Ishhad, the petitioner has not stated in the plaint with specific reference to the date, time and place of making and said declarations and that there is no specific reference to the day and time even in the statement of Noor Muhammad attorney. I would be appropriate to reproduce the findings given by the learned Additional District Judge in this regard:-- Para 10. "It was held in reported case Abdul Qayyum Khan v. Mussa Khan and 5 others 1995 CLC 729 that Talb-e-Muwathibat and Talb-e-Ishhad are pure questions of fact, which is bound to be alleged by the plaintiff in the plaint with specific reference to the date, time and place of making the declaration which by now has become to be also interpreted as jumping demand. In the present case it was stated in paragraph No.3 of the plaint that factum of sale was known to the plaintiff about 2-1/2 months before institution of the suit. There is no reference to specific date, time and place of making of Talb-e-Muwathibat, in the plaint, as required...' but there is no specific reference to the day and time, even in the statement of Noor Muhammad ..... .... Similarly there is no specific reference to the place, time and day, in notice of Talb-e-Ishhad, Exh.P.3, of making of Talb-e- Muwathibat. It is just stated that plaintiff came to know about the sale about 2 days before sending of notice. There is no mention of place and time." In the above perspective, suffice it to say that the afore-noted findings given by the learned Additional District Judge are contrary to the law declared by the Honourable Supreme Court of Pakistan in a case reported as Altaf Hussain v. Abdul Hameed alias Abdul Majeed through, legal heirs and another 2000 SCMR 314, wherein it has been held as under:-- "Requirement of Talbs.

Plaintiff could not be non-suited on the ground that date, time and place when and where the plaintiff learnt about the sale transaction, were not specifically pleaded in the plaint. " In another case reported as Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 the Honourable apex Court of the country has held as under:-- "but law does not require the pleadings to contain gist of all the facts and names of the witnesses of plaintiff and suit for pre-emption is not an exception to such general principle-- Contention that the requirements of Talb-i-Muwathibat could not be fulfilled unless details, particulars, date, time and place were ,specifically mentioned in the plaint and the names of the persons in whose presence such Talbs was made were also mentioned therein, was repelled."

7. If the impugned judgment is placed in juxtaposition with the dictum laid down by the Honourable Supreme Court of Pakistan in the afore-noted cases of Altaf Hussain and Noor Muhammad, it will lead to an irresistible conclusion that the impugned judgment is contrary to the law declared by the Honourable Supreme Court of Pakistan, as such I am of the considered view that the same is not sustainable in law.

8. So far as the contention of the learned counsel of the respondent that the learned Civil Judge fell into legal error by rendering the judgment, suffice it to say that the learned counsel, even during the arguments, could not point out any material piece of evidence, which has either been misread or non-read by the learned Civil Judge. I have examined the judgment and decree passed by the learned Civil Judge and find that he has embarked upon every aspect of the case and, while deciding Issue No.5 in favour of the petitioner has discussed each and every witness and document produced by the parties and rightly came to the conclusion that the petitioner/plaintiff has performed Talb-e -Muathibat as well as Talb-e-Ishhad according to law. The petitioner/plaintiff has fully proved the attestation of notice by two truthful witnesses. In my view the findings rendered by the learned Civil Judge while coming to the conclusion that the petitioner/plaintiff has fulfilled the requirements of Talbs in accordance with section 13 of Punjab Pre-emption Act, are legal apt to the facts and circumstances of the case and are not open to exception, therefore, I am inclined to maintain the said findings. On the other hand, the impugned judgment, as noted above, is even contrary to law declared by the Honourable Supreme Court of Pakistan and the learned lower Appellate Court, while deciding the crucial issue, has itself fell into grave legal errors inasmuch as the judgment was rendered contrary to the law declared by the Honourable Supreme Court of Pakistan, while per force of Article 189 of Constitution of Islamic Republic of Pakistan, decisions of Supreme Court of Pakistan are binding on all the Courts. I am of the considered view that the impugned judgment .is not sustainable in law, hence I am inclined to set aside the same.

9. The upshot of the above discussion is that the present revision petition stands accepted, impugned judgment and decree dated 30-1-1996, passed by the learned Additional District Judge, is set aside with the result that the judgment and decree dated 31-7-1994, passed by the learned Civil Judge is hereby restored. There is no order as to costs. H. B. T./F-118/L Revision accepted.