2017 PLP 94 (CLCN)

MUHAMMAD AMEER BHATTI, J.

This revision petition calls-in-question the concurrent findings of fact recorded by both the learned Courts below, whereby the suit and appeal, filed by the petitioner were dismissed vide judgments and decrees dated 30.09.2010 and 06.10.2011, respectively.

2. The facts relevant for disposal of this revision petition are that the petitioner instituted a suit for possession through pre- emption regarding land, described in the plaint, for a consideration of Rs.1,98,000/- through mutation No.404 dated 10.12.2004 with the assertion that he had a superior right and performed Talbs in accordance with law. The suit was contested by the respondent by filing written statement alleging therein that the Talbs were not performed as required by law besides controverting the factual position of the case. Accordingly issues were framed and parties led their evidence on issues. The learned trial Court after recording evidence of the parties, dismissed petitioner's suit on the ground that the petitioner failed to prove his superior right whereas the finding on issue No.7 regarding Talbs is silent being redundant as the plaintiff failed to prove his superior right. Consequently, the petitioner preferred appeal which stood dismissed not only on the ground that the petitioner had no preferential right but also on account of non-production of Postman so as to prove factum of Talb-i-Ishhad; hence, this revision petition.

3. The learned counsel for the petitioner contends that in suit proceedings, list of witnesses including Postman and Record Keeper along with record through Court was submitted within stipulated period. Record reveals that on deposit of witnesses' expenses i.e. Postman and Record Keeper were summoned for their appearance to record their evidence. On the other hand, the petitioner produced his private witnesses and after recording of their evidence, oral evidence was closed in the wake of counsel's statement. Adds that the learned trial Court failed to perform his obligation of summoning the Postman and Record Keeper, owing to which, the petitioner could not be non-suited and at one stage of proceedings, realizing his bona fide mistake, the petitioner filed an application for summoning of those missing witnesses to rectify the same which fact would show his bona fide intention but the learned trial Court dismissed that application without any legal justification by holding that after closing of evidence application could not be allowed at belated stage. It is added that the learned trial Court dismissed the suit of the petitioner on the ground of lack of superior rights but no finding was recorded on issue No.7 qua Talbs except declaring it redundant, therefore, the petitioner by filing appeal took no specific ground regarding rejection of his application for summoning of Postman and Record Keeper along with record whereas the learned first Appellate Court on one hand declared the non-production of Postman for recording his evidence to prove the factum of Talb-i-Ishhad was fatal to the suit for pre-emption and on account of omission of his testimony, observed that the petitioner had not performed the Talbs in accordance with law, as the production of Postman was essential to prove the factum of Talb-i-Ishhad and the suit was dismissed besides confirm lack of superior right to the extent of some piece of land. Therefore, he filed this revision petition taking all the grounds as also seeking permission to produce the Postman to substantiate his contention regarding performance of said Talb.

4. On the other hand, learned counsel for the respondent contends that the memo of appeal does not reflect any ground qua rejection of his application for production of additional evidence of Postman and Record Keeper, therefore, at this stage, he has no right to claim that his application for production-summoning of Postman and Record Keeper was dismissed without any legal justification and to this extent his right has become time barred and rule of waiver and estoppel is also attracted, thus, at this stage, he cannot be permitted to fill-up the lacunas.

5. I have heard the learned counsel for the parties and examined record of the case.

6. It is not denied that petitioner's application for summoning-production of Postman and Record Keeper along with record notwithstanding the fact that it was moved after closing his evidence on his counsel's mistake would have not been dismissed as the Court was under legal obligation to procure the attendance of the Court witnesses reflected in the list of witnesses and orders of the Courts for their appearance issued on deposit of expenditures but for unknown reasons the orders could not be complied with as orders are silent in this regard. Learned counsel after producing the private witnesses inadvertently made the statement for closing of evidence. Notwithstanding the fact that it was considered to be mistake of the counsel, even then it was incumbent on the Court to perform its legal obligation when specifically the names of witnesses summoned through Court had been mentioned in the lis of witnesses and particularly when process in this regard had already been initiated on deposit of necessary expenses by the petitioner. This mistake was clearly attributed to the Court and the petitioner alone was not the contributory and it is settled law that act of Court prejudice none, therefore, that application ought to have been allowed and the witnesses mentioned in the list of reliance through Court must have been summoned by the learned trial Court. This patent illegality and irregularity floating on the surface of record has eluded the attention of the learned first Appellate Court. Although it was obligation of the petitioner to challenge the interlocutory order by taking a specific ground in the memo of appeal pertaining to rejection of his application for summoning of the official witnesses through Court but here on the issue of Talbs, no finding had been recorded by the learned trial Court. Therefore, the petitioner had not assailed on this particular issue and generally mentioned in his grounds of appeal that judgment of the learned trial Court is against the law and facts of the case. In a case reported as Mst. Khurshid Begum and others v. Ahmad Bakhsh and others (PLD 1985 Supreme Court 405) and Muhammad Bashir v. Muhammad Hussain and 16 others (2009 SCMR 1256), it was held that it is not necessary to challenge every interim order in ground of appeal but entire case including interim orders are reopened at the time of hearing the appeal. In the latter judgment, it was held:- "..."on the filing of an appeal the entire matter becomes re-open and sub judice and has to be decided in accordance with law prevalent". In this view of the matter even if, a ground raised and not pressed which relates to fundamental question can be considered by the Court. Reference can conveniently be made to Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895." In Mst. Khurshid Begum's case (PLD 1985 Supreme Court 405), it has been held that: "When an appeal is filed against ultimate decision, whole case including all interim orders passed in the case get reopened and can be challenged before Court of appeal hearing the appeal filed against final decision whereby suit was ultimately disposed of." Even otherwise, Order XLI, rule 33, C.P.C. empowers the Appellate Court to do complete justice while hearing the appeal. To sum-up, the Appellate Court has been given full authority to examine each and every interim order as well as all proceedings conducted by the learned trial Court, as it is settled law that appeal is continuation of suit. Presumably, the learned lower Appellate Court, keeping in view said settled law, not only upheld the findings on the issue of superior right to some extent but also preferred to examine the validity of performance of Talbs on the touchstone of principles of law enunciated by Hon'ble Supreme Court, hence declared that the petitioner failed to perform the Talbs in accordance with law, as the evidence of Postman was missing, which was necessary to prove the factum of Talb-i-Ishhad as held by honourable Supreme Court in Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866) and Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). Even otherwise, there was no other mechanism to examine the findings of the learned trial Court, which was silent on issue No.7 regarding Talbs. Astonishing, the significance of issue of Talbs has been ignored as it was essential duty of the Courts to first determine the question/issue with regard to performance of Talbs. The pre-emptor in proving his superior right if failed to prove performance of Talbs, could not succeed in obtaining the decree, therefore, it was essential to examine the significant effects of performance of Talbs. If any pre-emptor failed to prove the factum of Talbs, as intended in section 13 of Punjab Pre-emption Act, 1991, the merits of the case need not to be examined as the plaint is liable to be rejected on account of non-incorporation of three essential ingredients of performance of Talb-i-Muwathibat date, time and place in plaint. Likewise, if Talb-i-Ishhad has not been performed in accordance with law, apex Court declared it a sufficient ground for dismissal of the suit regardless he proved his superior right. In other words, Talb-i-Muwathibat and Talb-i-Ishhad are the sub-structure on which the super-structure (remaining Talbs) can be erected. Adverting to the question in-hand, I am of the view that the judgments of both the Courts below are suffering from legal infirmity while not exercising the power provided under the law. In the given situation, the decision taken by the learned trial Court pertaining to additional evidence had not been adjudicated in accordance with law. Therefore, I am of the convinced view that this glaring illegality and irregularity would be suffice to remand this case with permission to the petitioner to produce the Postman and Record Keeper along with record.

7. However, perusal of record further reveals that although in Para 4 of the plaint, the petitioner averred that notice was dispatched-sent to the vendee-defendant through registered Acknowledgment Due on 26.03.2005 whereas, regarding its delivery-reach to the intended address, the plaint is silent. Likewise, the plaintiff appeared as PW-1 and in his testimony he has not uttered a single word about Acknowledgment Due. Even he has not disclosed that the notice was sent through registered Acknowledgment Due rather it was registered. Testimony of other P.Ws. i.e. 2 and 3, witnesses of the notice, were also silent. Notice Exh.P-1 also lacked description qua the Acknowledgment Due. Even none of the P.Ws. including the plaintiff had failed to say a single word about fate of the notice, 'whether it was received and Acknowledgment received back, not received, refuse to receive etc. nor acknowledgement receipt has been placed on record without which production of Postman would be useless. It is essential to dispatch the notice through registered Acknowledgement Due and its dispatch/ delivery has to be proved by producing its two truthful witnesses and Postman whereas from the evidence led by the plaintiff it is established that notice was dispatched through registered mail but without acknowledgement receipt which is sine qua non to fulfill the requirement of law as intended in section 13 of the Act ibid. Reliance is placed on Khan Afsar v. Afsar Khan and others (2015 SCMR 311), wherein it has been held: "The general law as contained in section 26 (supra) of the Provincial General Clauses Act, 1956 would not be applicable. Section 13(3) of the N.W.F.P. Pre-emption Act 1987 stipulates, "under registered cover acknowledgement due" (emphasis added) whereas the word "acknowledgement due" are not mentioned in section 26 of the General Clauses Act, 1956 applicable to the Province of Khyber Pakhtunkhwa. In the case of Muhammad Bashir (supra) it was held, that:- "

11. The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgment due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgment due" redundant. The service of the addressee as prescribed in law therefore is imperative. If the acknowledgment card carried an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah b. v. Election Officer [1980] 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it." Since prerequisite of law qua sending of notice through registered Acknowledgement Due has not been fulfilled, therefore, production of Postman will not be helpful and it would be an exercise in futility to remit the matter back for recording of evidence of the Postman and Record Keeper.

8. I do not find any reason to interfere with the findings recorded by the learned lower Appellate Court, which dismissed the appeal of the petitioner owing to non-performance of Talb-i-Ishhad coupled with the reasons and deficiency in evidence recorded by this Court in the preceding paras pertaining to performance of second Talb. Resultantly, this revision petition being devoid of merits, is hereby dismissed. No order as to costs. ZC/A-109/L Revision dismissed.