2007 PLP 2220 (YLR)

SYED ASGHAR HAIDER, J.--The property in dispute was owned by Noor Zaman and Mst. Sameena Yasmin, they sold the suit property to the respondent/ defendant Muhammad Aslam, vide. Mutation No.1201, dated 8-11-1999. The petitioner filed 'a suit for pre-emption after fulfilling legal requirements of section 13 of the Punjab Pre-emption Act, 1991. The defendant/respondent filed written statement, of the divergent pleadings of the parties issues were framed, parties were put to trial, the petitioner produced three witnesses and tendered documentary evidence, Exhs.P.1 to P.5. The respondent appeared as his own witness and tendered in evidence Exh.D.1 (Rupt Roznamcha Waqiati). After contest the suit was dismissed. Aggrieved thereof the petitioner filed appeal, which was allowed and the matter was remanded to the trial Court. On 4-1-2006 the suit was again dismissed, the appeal also met the same fate. Hence, the present petition.

2. Learned counsel for the petitioner contended that Exh.D.1 was given undue credence, and weightage although the document was not proved in accordance with law. Learned counsel further contended that vide judgment dated 20-10-2005, the lower appellate Court had given a specific direction to the trial Court to give findings afresh on Issue No.8 alone, however the trial Court proceeded to give findings on Issue No.7 as well, material evidence on Issue No.8 has not been discussed in the impugned judgment. The petitioner was non-suited by both the Courts below relying on the statement of P.W.3, whereas other material evidence on this point was neither appraised nor discussed. To fortify his contentions he relies on Ghulam Abbas v. Noor Hussain Shah (2007 CLC 12), Muhammad Afzal and 2 others v. Mst. Marrayam BEA (2007 CLC 20), Altaf Hussain Shah and another v. Abdul Qadeer and 2 others (2004 YLR 824), Shoukat Hayat v. Liaquat Khan (2005 YLR 60), Noor Muhammad v. Abdul Ghani (2002 CLC 88), Lal Khan v. Bashir Ahmad (1989 CLC 140), Muhammad Younas v. Shahid Naveed (1989 CLC 837) and Sattar Muhammad and 2 others v. Hussain and 3 others (PLD 1988 Peshawar 48).

3. Learned counsel for the respondent conversely submits that notwithstanding the effect of Exh.D.1, the plaintiff has to prove his case upon the strength of his evidence and cannot rely upon the infirmities in defence of the other party. The trial Court could look into Issue No.7, notwithstanding the effect of the specific direction issued by the lower appellate Court as the word afresh means decision of the entire matter. To fortify his contentions he relies on Rahmat Shah and 2 others v. Sarwar and another (PLD 1971 Peshawar 205), Federation of Pakistan through Secretary Ministry of Law "v. Zafar Awan, Advocate (PLD 1992 SC 72), Muhammad Ramzan v. Lal Khan (1995 SCMR 1510), Khurshid Alam and another v. Al-Khair Gadoon Limited (2004 CLC 1266). Under Order XLI, rule 31, C.P.C., the appellate Court was required to determine the points for adjudication and give decision thereon with reasons. The record reflects that - the petitioner produced in evidence, three witnesses P.W.1 to P.W.3 and also tendered in evidence Exh.P.1 to Exh.P.5. The lower appellate Court has not adverted to this evidence or discussed it in the impugned judgment. Likewise, Exh.D.1 is a copy of Register Roznamcha Waqiati, a specific plea was raised in the grounds of appeal, pleading that the stated document was not proved in accordance with law. The impugned judgment reflects that Exh.D.1 was relied upon without deciding the petitioners objections raised in this regard, thus, there is no proper determination or decision on the touchstone of grounds (a), (b) and (c) as enumerated in Order XLI, rule 31, C.P.C. The impugned judgment is, therefore, not tenable in law and amounts to non-exercise of proper jurisdiction as well as non-reading of evidence. The precedents referred to by the learned counsel for the respondent are distinguishable on facts. Resultantly, this petition is allowed, the impugned judgment and decree is set aside, the proceedings are remitted to the lower appellate Court and it is directed to scan and appraise the entire oral and documentary evidence tendered by the parties to the dispute, decide the objections of the petitioner qua Exh.D.1 and thereafter proceed to determine and decide the matter in accordance with the requirements of Order XLI, rule 31, C.P.C., after hearing the parties. No order -as to costs. F.B./A-122/L Petition allowed.