2006 PLP 1410 (SCMR)

KARAMAT NAZIR BHANDARI, J.

Petitioners are vendees of suit-land measuring 21 Kanals, 4 Marlas which they purchased through Mutation No.3309, dated 30-3-1994 for ostensible price of Rs.1,80,

000. Respondent Mazhar Hussain filed a suit for possession through pre-emption on the ground that he was a co-sharer. While his suit was in progress it seems another suit for pre-empting the sale was tiled by one Mst. Shahzadan Begum. The two suits were accordingly consolidated and each of the rival pre-emptor was made defendant in the suits. The suits were contested on number of grounds but ultimately Issue No.4 relating to performance of Talbs turned crucial. The trial Court dismissed the two suits on 20-5-2000 holding that both the rival pre-emptors failed to establish the performance of Talbs as required by law. The trial Court did not record any finding under Issues Nos.5 and 6 reflecting the controversy as to superior right of pre-emption. The two appeals were taken to the District Judge by the rival pre-emptors and both were dismissed on 19-9-2000. The learned District Judge concurred with the finding of the trial Court on the question of Talbs. Only Mazhar Hussain challenged the judgments and the decree in the Lahore High Court by filing civil revision which has been accepted by the learned Judge vide judgment, dated 10-3-2004. The High Court set aside the findings under Issue No.4 and remanded the case back to the trial Court for deciding Issues Nos.5-6 relating to superior right of pre-emption vis-a-vis the vendees and amongst the rival pre-emptors inter se. It may be noticed that by failing to challenge the decree of' the District Judge the rival pre-emptor namely Mst. Shahzadan stood eliminated from litigation. During the course of hearing we have also been informed that the trial Court has since found in favour of the respondent-pre-emptor under Issue No.5 relating to superior right and has decreed the suit. This finding is statedly pending adjudication with the appellate Court.

2. In support of this petition for leave to appeal from the judgment and decision of the High Court, dated 10-3-2004, it is strenuously urged by Ch. Afrasiab Khan, learned Advocate Supreme Court that the High Court was not justified in interfering in the concurrent findings in exercise of its revisional jurisdiction. He has cited Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798; Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564 and Muhammad Nawaz and others v. Muhammad Khan and others 2005 SCMR 710 to support this contention. He has read evidence before us to show that the plaintiff-pre-emptor has been inconsistent as to date of knowledge of the sale i.e. 7-6-1994 or 6-6-1994. He has also pointed out that initially in the plaint the respondent-pre-emptor mentioned the date of knowledge of sale as 19-6-1994 but later on was allowed to amend the plaint so as to change the date of knowledge to 7-6-1994 on the ground that the mistake was typographical. He states that revision filed by the petitioner against the order permitting amendment was dismissed by the District Judge, Chakwal on 14-1-1998 and the revisional order was never challenged further. He has also argued that under section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred to as Act) notice of Talb-e-Ishhad has to be sent through registered post acknowledgment due and there is no evidence on record that the pre-emptor-respondent complied with this provision.

3. Mr. Gulzarin Kiani, learned Senior Advocate Supreme Court appearing for the respondent-pre-emptor has defended the impugned judgment. According to him both the trial Court as well as the appellate Court recorded findings under Issue No.4 in disregard of the weight of evidence and by drawing inferences which are legally uncalled for. According to him in the circumstances the High Court was perfectly justified in setting aside the findings. He further submits that the obligation placed upon the pre-emptor under section 13(3) of the Act is to send notice through registered post acknowledgment-due and there is no further duty cast upon him to see that the same is received by the addressee. The argument of Mr. Afrasiab that there is no mention of the place, time etc. of Talb-e-Mowathibat in the notice as well as in the plaint is sought to be met by Mr. Kiani by relying on Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329.

4. It is well-settled by now that basically revisional jurisdiction is meant to correct errors of law including jurisdictional errors. However, if the revisional Court finds that the Courts subordinate to it have exercised its jurisdiction not legally and properly it can legitimately interfere in findings of fact as well. In this case if the judgments of the trial Court and the appellate Court are read in juxtaposition to the judgment of High Court it is clear that the High Court was justified in passing the impugned order. The trial Court as well as the appellate Court has wrongly understood the provision of section 13(3) of the Act. The pre-emptor is required to send the notice through registered post acknowledgement due where ever the postal facility is available and it is no part of his obligation to see that the notice has also reached the addressee. The law presumes that if a pre-paid and properly addressed notice has been handed over to the post office the same would reach its destination in due course of mail. In this case the High Court is right in holding that the respondent-pre-emptor has succeeded to establish the performance of Talb-e-Ishhad by sending the notice as required by law, vide Exhs.P.1, P.2 and P.3. Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179 refers.

5. As has been held in the case of Haji Noor Muhammad (supra) the pre-emptor is not required to state in detail the manner, the time and the place of making Talb-e-Mowathibat. It is suffice if he so observes in C the notice as well as in the plaint. A pre-emptor cannot be knocked out merely because he failed to furnish the details of Talb-e-Mowaithibat. We find that the two Courts that is the trial Court and appellate Court suffered from the legal misconception as if the failure of the plaintiff to give details was fatal to his case.

6. The order permitting amendment to the plaintiff to change the date of knowledge of sale from 19-6-1994 to 7-6-1994 is not directly under challenge in this petition. However, Mr. Afrasiab has made a grievance that this amendment could not have been allowed. We do not agree. The reading of the plaint as originally presented clearly shows that mentioning of date of knowledge of sale as 19-6-1994 was nothing but typographical error. The Courts acted correctly in permitting amendment. The High Court has correctly taken care of the argument that the date of knowledge of sale in two statements of the plaintiff dated 25-2-1996 and 19-1-2000 is different. The statements of rival pre-emptors were recorded afresh, with the consent of the learned counsel for the parties, as earlier statements were recorded by the Reader of the Court and were not signed by the Presiding Officer. In the circumstances, the earlier statements were no longer "evidence". Be that as it may, in his first statement the pre-emptor asserted that he acquired knowledge of sale on 7-6-1994 while in the second statement while replying to a question in cross-examination put by rival pre-emptor, the respondent plaintiff stated that "perhaps P.W.2 Sarwar informed of the sale in the evening of 6-6-1994". In our view this divergence rather than being fatal confirms the truthfulness of the respondent. Plaintiff was prudent enough to add the word "perhaps" while recalling the date of knowledge of sale. Minor discrepancies have never been held fatal to the testimony of a witness, particularly when considerable period has lapsed in recording the statement. See Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 and Allah Bakhsh and another v. Falak Sher 2004 SCMR 1580.

7. Mr. Afrasiab has also urged that notice of Talb-e-Ishhad is to be sent as soon as possible but within 14 days of Talb-e-Mowathibat. According to him the notice in this case is bad as there is no explanation as to why the notice was sent on 19-6-1994 when the pre-emptor learnt of the sale on 7-6-1994. In our judgment the argument does not deserve any serious consideration. It is sufficient if the notice is sent within the prescribed time. No duty can be cast upon the plaintiff-pre-emptor to explain the passage of each date from the date of Talb-e-Mowathibat to the date of notice of Talb-e-Ishhad, provided the same is sent within 14 days.

8. For the above reasons we find no merit in this petition which is hereby dismissed, without any order as to cost. Leave is refused. M.H./H-6/SC?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.