1996 PLP 1652 (CLC)

3. I have heard the learned counsel for the parties and have also gone through the record. I .have given my anxious consideration to the facts. Venturing to repeat the facts I would like to record that the pre‑empted sale took place on 11‑2‑1966. Suit for pre‑emption by Sher Din the deceased plaintiff was filed on 25‑5‑1966. Issues were framed and suit was decreed on 11‑11‑1968 by Senior Civil Judge, Rahim Yar Khan. The appeal was filed thereafter which was also dismissed on 17‑3‑1969. RSA No. 16‑69 was accepted on 14‑2‑1993 and as detailed above the review petition was also dismissed on 6‑I 1‑1993. A direction was issued by this Court for deciding the application under Order XLI, Rule, 27, C.P.C.

4. It was the case of the petitioners/defendants themselves that the land was situated in the colony areas and the Pre‑emption Act was riot applicable on the said land and that as the plaintiff was also owner in the land which was situated in the colony area he had no preferential right over the said land of pre emption.

5. Learned counsel for the petitioners has submitted that the concept of bar against filling the gaps was no more available in Pakistan Jurisprudence and the ‑law including the case‑law on Islamic Principles was being made applicable by , . F' the superior Courts who are liberally allowing the applications for additional' evidence; and that substantial justice was requirement of Islam and technicalities should not be allowed to deprive the applicant of his sacred rights in property. Reliance was placed by him on Zar Wali Shah. v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) and Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811). The point before the Hon'ble Supreme Court in Zar Wali Shah's case was that the appeal had arisen out of unfortunate dispute between Zar Wali Shah and his uncle and a suit for declaration was filed that an evacuee property, transferred to his uncle Saeed Shah in fact belonged also to the appellant to the extent of 1/3rd share; as he had contributed in the payment of price of said property to the extent of Rs.28,000 at the time of its purchase by Saeed Shah in an open auction. Reliance was placed on an agreement alleged‑ to have been executed by Saeed Shah, on 21‑4‑1974 acknowledging 1/3rd share of the appellant in the suit property. The respondents/defendants' side had also instituted a suit against the appellant claiming declaration of ownership as heirs of Saeed Shah and challenging the genuineness of Iqrarnama dated 21‑4‑1974. They had also prayed for recovery of mesne profit from the appellant. The suit of Zar Wali Shah was dismissed and that of the other side was decreed. The Hon'ble Supreme Court had summoned the record because ‑it was agreed that if Iqrarnama is genuine the respondents would have no case. Learned counsel fox both the sides were also directed to assist the parties for entering into the meaningful dialogues for settlement out of Court over main .contention of both the parties about the .genuineness or otherwise of Iqrarnama. The learned counsel for the appellant had, before the Supreme Court, contended that the documents were available before the Lower Court for comparison with the disputed signatures. No serious effort was made to‑ reach the truth. Both the parties submitted for examination of the admitted Urdu signature of Saeed Shah. The Court compared the signatures by both sides and the Hon'ble Supreme Court observed that:‑‑ "It is not necessary to admit any additional evidence in this Court. It appears that the trial Court could have collected more evidence but failed to do so. Even if one or the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed document/signature, the Court had ample power to do the needful so as to advance justice rather than injustice. The concept of bar against filing the gaps is no more available in the present Pakistani jurisprudence and the law, including, the precedent law on Islamic principles, which are being made applicable progressively to the, proceedings before the Courts and other forums which are required to record/admit evidence. See Mian Aziz A. Sheikh v. The Commissioner of Income‑tax PLD 1989 SC 613." It was in that context that Supreme Court remanded the case observing that even if one or the other party had failed to produce all the material documents and had failed to request for proper examination of the disputed document/signatures, the Court's ample powers to do the needful so as to advance justice rather than injustice. In the. present case there was no * document on the file of the Trial Court or before the appellate Court. In Mst. Fazal Jan's case the Hon'ble Supreme Court found that the petitioner was a lady, the case was badly conducted from both sides and relevant documents were not brought on record and the Courts below having failed to perform their duties even to summon Patwari so as to supply the omission from both sides, as the case related to ‑inheritance. It was considered as appropriate case for exercise of powers under Order XLI, Rule 27, C.P.C. The Court took very serious note of the original record of the Trial Court which was showing a miserable jumble of papers which could have also resulted in miscarriage of justice. The Court was pleased to provide the legal assistance to the lady through engagement of a competent counsel at State expense. No such circumstance was available in the present case. The suit was properly contested and the matter came up to the level of the High Court twice earlier.,

6. So far as the contention raised at the time of admission of the present revision i.e. pre‑emptor/respondent's ownership was based on oral sale, which was hit by section 54 of Transfer of Property Act, 1882 and no title passed to him is a question of fact which was to be determined by the Trial Court. However there was sufficient material on the file and the present petitioners had sufficient opportunity to prove their case. The petitioners had not filed the copy of Mutation No.27 which is sought to be produced in evidence at this stage nor they had relied upon the same. They are supposed to know the rights of plaintiff as they purchased the property from the same Khewat. It was not difficult for them to know that there was some effect in the title of the plaintiff which could debar him from pre‑empting the suit land. I shall not discuss the alleged disability at this stage because the same was to be decided on available record by the appellate Court. The petitioners had in their application not given any reason for not producing the copy of the mutation earlier. It was simply stated in the‑application that Mutation No.27 was a public document and was helpful in determining the status of the plaintiff and would assist the Court in deciding the case. No reason whatsoever has been given in the petition for not producing the said copy earlier or a reason for not placing the reliance on the said documents. In case Nazir Ahmad and 3 others v. Mushtaq Ahmad (1988 SCMR 1653) the Hon'ble Supreme Court observed that no explanation having been offered why evidence which was sought to be produced for the first time in appeal, was not tendered before the trial Court and consequently dismissed the request for production of additional evidence. Allah Ditta v. A.F. Ahmad & Company and others (PLD 1952 Lahore 582) was a case where documents were not filed with the plaint. The plaintiff had ample opportunity to produce it at the proper stage. As no explanation had been advanced for the delay it was held that there was necessarily a lack of diligence and therefore additional evidence was not allowed.

7. There was no doubt that the right of pre‑emption was a predatory and a piratical right and since it has been granted by law, the other party could not take undue advantage of this view. Petitioners were defending their rights in the land and had purchased land in Khata in which the plaintiff was recorded as a co‑sharer. The minimum diligence required was to ascertain the right/title of the plaintiff to defend their right in the suit. 8. . Yet another fact goes against the present petitioners. During the course of trial of the suit they had filed an application under Order XIII, Rule 2, C.P.C. seeking permission of the Court to produce copies of mentioned official documents as additional evidence. The indulgence was granted and discretion was exercised in their favour and they produced certified copies of mutations 8 Exh. D‑7, Exh.D8, Exh.D10 and also a copy of pedigree‑table as Exh.D9 and copy of Settlement Robkar Exh.Dll. They were successful in tracing out Exh.D.10 which was decided in 1939 but no reason has been advanced by them as to how existence of Mutation No.27 escaped their notice which particularly related to right and title of the plaintiff.

9. The Courts are to dispense justice to both the parties before them and in view of the circumstances of the case discretion could not be exercised in favour of the petitioners who had availed of the indulgence of the Courts even earlier in producing additional evidence. Allowing yet another application would amount to denial of justice to the other side and that was the reason for my humble attempt to, differentiate the present case from Zar Wali Shah's case and Mst. C Fazal Jan's case. The parties could not be allowed to reopen the matter and pester the Courts to keep the matter pending as in the present case which is pending since 1966. The agony of the other side must end and the proceedings must be allowed to attain ultimate finality.

10. In view of what has been stated above the District Judge has exercised his jurisdiction without any material irregularity and commission of no illegality had been pointed out. The discretion has been properly exercised and requires no interference.

11. Resultantly the petition is dismissed with costs of Rs.2,

000. A.A/Ti‑10/L Petition dismissed