1995 PLP 1488 (MLD)
GHAZI‑‑‑Petitioner Versus SALAM DIN‑‑‑Respondent
| Citation | 1995 PLP 1488 (MLD) |
| Forum / Court | Peshawar |
| Bench Members | Jawaid Nawaz Khan Gandapur, J |
| Parties | GHAZI‑‑‑Petitioner Versus SALAM DIN‑‑‑Respondent |
Q1: What are the key laws and sections cited in 1995 PLP 1488 (MLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1995 PLP 1488 (MLD)?
The case was heard and decided by the Peshawar bench comprising: Jawaid Nawaz Khan Gandapur, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1995 PLP 1488 (MLD) (GHAZI‑‑‑Petitioner Versus SALAM DIN‑‑‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Muhammad Ayub for Petitioner.
- Bashir Ahmad Tanoli for Respondent.
- Date of hearing: 10th April, 1994.
Headnotes / Summary
(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑ ‑‑‑‑S. 13‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Suit for pre‑emption‑ Dismissal of suit on the ground that requirements of Talb‑i‑Muwathibat and Talb‑i‑Ishhad were not fulfilled in accordance with law ‑‑‑Validity‑‑‑Factum of making Talb‑i‑Muwathibat" and "Talb‑i‑Ishhad" being primarily a question of fact, Courts below had given their findings against plaintiff‑‑‑Concurrent findings of fact arrived at by Courts below could not be interfered with in exercise of revisional jurisdiction of High Court unless those Courts were shown to have either acted illegally or with material irregularity‑‑‑Lack of jurisdiction on parts of Courts below had neither been asserted nor proved‑‑ There being no violation of law as within the terms of provisions contained in S.115, C.P.C. High Court declined to interfere with concurrent findings of Courts below. Muhammad Ayub Khan v. Muhammad Zaman and another PLD 1990 Pesh. 181 rel. (b) Civil‑Procedure Code (V of 1908)-‑‑ ‑‑‑‑O. XIII, Rr. 1 & 2‑‑‑Non‑production of document before Trial Court‑‑ Effect‑‑‑Plaintiff being in possession of document sought to be produced at revisional stage before High Court ought to have produced it before Trial Court‑‑‑Non‑production would indicate that same was purposely withheld and that if the same had been produced in evidence it would not have supported plaintiff's case‑‑‑Plaintiff could not offer any plausible explanation for non- production of the same before Trial Court‑‑‑Plaintiff thus, failed to establish basis of her claim-‑‑Document in question could not be allowed to be produced at revisional stage.
Judgment & Decree
(2) Whether the plaintiff is estopped by his own conduct to file the present suit? (3) Whether the suit is within time? (4) Whether the suit is incompetent in its present form? (5) Whether Talb‑e‑Muwasibat and Talb‑e‑Ishhad were not made according to law, if so its effects?. (6) Whether the plaintiff was in the knowledge of the suit transaction on the date of its attestation, if so, its effects? (7) Whether the suit of the plaintiff is based on a mala fide and whether the suit has been instituted at the instance of Chanzeb vendor, if so, its effects? (8) Whether the plaintiff has got superior right of pre‑emption? (9) Whether a sum of Rs. 27,600 were fixed in good faith and actually paid as sale consideration? (10) Market Value? (11) Relief.
3. After recording the evidence which the parties wished to adduce in support of their respective cases, the trial Court vide its judgment dated 25‑1‑1990 dismissed the suit mainly on the ground that the requirements of "Talb‑i‑Muwathibat" and "Talb‑i‑Ishhad" were not made in accordance with the law‑
4. Dissatisfied with the judgment of the trial Court the petitioner filed an appeal before the District Judge; Mansehra. The appeal was entrusted to Mr. Jehangir Khan, Additional District Judge for disposal. The Additional District Judge, Mansehra by his judgment dated 17‑3‑1992 upheld the judgment of the trial Court and dismissed the appeal.
5. The petitioners have, therefore, filed the present revision petition for the redress of their grievance.
6. Mr. Muhammad Ayub Khan, Advocate, learned counsel for the petitioner and Mr. Bashir Ahmad Tanoli, Advocate, learned counsel for the respondent present and heard. Record of the case perused.
7. It may be stated at the outset that the factum of making "Talib‑I- Muwathibat" and "Talib‑i‑Ishhad" is primarily a question of fact. In this respect, the trial Court has given its finding against the petitioner and the same was confirmed by the lower appellate Court. The concurrent findings of fact arrived at by both the lower Courts cannot be interfered with in the exercise of revisional jurisdiction by this Court unless it is shown that the lower Courts have either acted illegally or with material irregularity. Similarly it has not been alleged, by the learned counsel for the petitioner that the lower Courts have no jurisdiction to decide the case one way or the other. Since the lower Courts have not violated the provisions as contained under section 115, C.P.C., therefore, I am. not inclined to interfere with the judgments delivered by them. If an authority is needed I am supported by a case Muhammad Ayub Khan v. Muhammad Zaman and another reported in PLD 1990 Pesh. 181.
8. Beside this, it may be pointed out that in this case the alleged notice (Exh. D.W.4/2) was produced by Muhammad Sadiq son of the respondent (defendant), who appeared in the Court as the attorney of his father. In fact this notice should have been produced and proved by the petitioner‑plaintiff in his evidence. It is surprising that the petitioner‑plaintiff while appearing as P.W.7, in the trial Court, neither produced this notice to prove "Talib‑i‑Ishhad" nor did he bother to produce the witnesses of this notice i.e., Gul Mir son of Miskeen, caste Mir r/o Nawanshehr and Muhammad Shaukat Khan r/o Lamba Banda Mandian. The petitioner‑plaintiff instead relied on another notice allegedly issued from Mansehra after one day of notice Exh. D.W.4/2 mentioned above. Unfortunately that notice, allegedly issued from Mansehra, has not even been produced by the petitioner (plaintiff) in his evidence. In these circumstances, I am of the view that the said notice was purposely withheld and that had it been produced in evidence, it would not have supported the contention of the petitioner (plaintiff). When the learned counsel for the petitioner was asked to explain as to why notice (Exh. D.W.4/2) E and notice, allegedly issued from Mansehra, were withheld, he could not offer any plausible explanation for the same. On this score too failed I am of the view that the learned lower Courts have rightly held that the petitioner had failed to establish the factum of "Talib‑i‑Ishhad".
10. This revision petition does not merit consideration and is accordingly rejected. A.A./1767/P Revision dismissed.