Find a Lawyer

Regular Second Appeal No. 356 of 1978 Now Civil Revision No. 361 of 1987, decided on 2nd March, 1987.

---Ss. 100 & 115--Conversion of second appeal into revision- Preliminary objection that valuation-wise, second appeal was not competent--On non-controverting such objection by appellant, High Court on his request allowed such second appeal to be converted into revision and ordered registration thereof as such.

---Ss. 100 & 115--Punjab Pre-emption Act (I of 1913), S. 15- Conversion of second appeal into revision--Miscellaneous applications whether competent in revision--Scope of revision being limited one, where parties had to remain confined to record already constituted by Courts below, miscellaneous applications viz. for production of additional evidence, held, could not be entertained.--[Evidence- Appeal (civil)--Revision ( civil)].

Dillu v. Mst. Hameda Bibi alias Haleema P L D 1982 BJ 58 ref.

---S. 15--Right of pre-emotion based on plea of co--sharership abandoned--Effect--Plea of co-sharership having been dropped before First Appellate Court same, held, could not be raised in revisional jurisdiction of High Court--Observation of Courts below on a question of fact would be taken as final by High Court.

Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others P L D 1983 S C 93 rel.

---S. 21--Pre-emotion suit--Qualifications in plaint whether extendible--Pre-emptor in a pre-emotion suit, held, could succeed only on the qualifications urged in plaint and could not extend them by any interpretation.

---O.XLI, R. 27--Punjab Pre-emotion Act (I of 1913), S. 15- Additional evidence, production of--Requirement introduction of additional evidence, held, was not a matter of right--Where no prayer for production thereof was made before Trial Court nor First Appellate Court felt objectively the need of calling any such evidence for its own satisfaction, same could not be allowed to plug in loopholes before the High Court--.Revision being devoid of merit was dismissed in circumstances.

Parsotim Thakur and others v. Lal Mohar Thakur and others AIR 1931 P C 143 rel.

Ch. Muhammad Arif and S.M. Zamir Zaidi for Appellants.

M. Dilawar Mahmood and Sh. Naveed Shahryar for Respondents.

Date of hearing: 2nd March, 1987.

This regular second appeal calls in question the judgment/ decree, dated the 16th of November, 1977, of the learned District Judge, Sargodha, whereby the appellants' first appeal was dismissed.

2. A preliminary objection has been taken to the effect that valuation-wise the regular second appeal is not competent. It was not controverted and straightaway a request was made for conversion thereof into a civil revision. It is allowed and hence it be registered as such.

3. It was a suit for pre-emotion brought only on the two grounds, namely, that the petitioners/ pre-emptors were collaterals of the vendor, and that they were also co-sharers with him in the Khata. The respondents-vendees contested the suit denying the petitioners' better right of pre-emotion and, of course, raising a few other pleas. Appropriate issues were framed in regard to all of them. The trial Court found that neither of the qualifications was proved. The Petitioners' first appeal met the same fate. It was observed by the earned District Judge that there was no evidence in support of the pedigree table while the plea of being co-sharers in the Khata was not pressed. An application under Order XLI, Rule 27, C.P.C., was made before him for additional evidence to show that the petitioners were really collaterals of the vendor and further that they were co-sharers too with him in the Khatas. In the composite order, the Court below dismissed not only the appeal but also the afore-mentioned application holding, inter alia, that it did not feel the necessity of bringing on record any additional evidence to pronounce judgment and that making the application four and a half years after the institution of the suit, was by all canons very late. Yet another reason adopted was that the suit being one for pre-emotion, the petitioners /pre-emptors had to show exceptional vigilance.

4. Ch. Muhammad Arif for the petitioners drew attention to two miscellaneous applications made before this Court respectively for additional evidence and deletion of some of the petitioners pre-emptors. He pointed out that the Jamabandi placed upon the record proved at least the petitioner Muhammad Nawaz a co-owner in Khata No. 118, and worse coming to the worst, he could not have been denied the right although other pre-emptors did not enjoy any such qualification. He stressed that the doctrine of Sinker would not apply to the pre-emptors, in that the suit to the extent of those having no qualification could have been conveniently dismissed while that of others possessed of necessary qualification could have been decreed. Probably for this reason he moved one of the two applications for deletion of the pre-emptors who could not prove themselves to be equipped with any of the qualifications qua the respondents-vendees. He submitted that the observation made by the learned District Judge in regard to the abandonment of the qualification on the basis of co-sharership was, in fact, not borne by any specific statement and that it looked odd in the background of the petitioners' frantic effort in getting additional evidence placed upon the record to prove themselves collaterals of the vendor. Lastly, he tried to. make some capital out of an observation made by the trial Court in its judgment to the effect that plaintiffs Nos. 1 to 6 were owners in the estate.

5. Serious objections were taken on behalf of the respondents represented by Mr. M. Dilawar Mahmood and Sh. Naveed Shahryar, Advocates. At the outset they contended that no miscellaneous application could be entertained in a revision petition and for that, reliance was placed on Dillu v. Mst. Hameda Bibi alias Haleema P L D 1982 BJ 58. I think the objection is well-placed. It is no more a second appeal as valuation-wise it was not competent. Instead of dismissing it on that technical ground it was thought expedient to dispose it of as revision petition for which evidently parties had to remain confined to the record already constituted by the Court below. Whether the petitioner Muhammad Nawaz was held to be a co-sharer in Khata No. 118 was, in fact, rendered nugatory before the lower appellate Court where the very ground of co-sharership was dropped. There was no affidavit to the effect that the ground was not abandoned before the lower Court, and even if there were any, the rule laid down in Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others P L D 1983 S C 93 would not allow its acceptance. The observation of the Court in that context was rather the last word on it. It was a question of fact and any observation by the Courts below thereabout shall be taken as final. Thus, it cannot be urged that though the Jamabandi proved the petitioner Muhammad Nawaz to be a co-sharer in one of the Khatas, yet his case was dismissed in appeal by any misconception. There was an overt expression giving UP that qualification and the petitioners are bound by it. Next, the ownership in the estate although referred to by the trial Court obliquely in its judgment would not render any assistance to them, for, they had not raised it in the plaint. A suit for pre-emption is known for its requirements. Cane could succeed only on the qualifications urged in the plaint and cannot extend them by any interpretation whatsoever. The opposite party could not be taken by surprise and, therefore, even if the petitioners were owners in the estate, they will not be allowed to pre-empt the sale on the basis thereof. Mr. Arif for them pressed into service the application made before the lower appellate Court for additional evidence. He could do so but the reasons advanced for rejection of the prayer were quite strong. The pedigree table should have been appended to the plaint. The trial took long five years. The petitioners did not notice the omission mainly because they were not vigilant. Additional evidence is not a matter of right. No such prayer was made before the trial Court, nor did the learned District Judge himself feel objectively the need of calling any such evidence for his own satisfaction. Parsotim Tnakur and others v. Lal Mohar Thakur and others A I R 1931 PC 143 was referred to for the view that a litigant unsuccessful before lower Courts would not be allowed to plug in loopholes before the High Court. I do not think the reasons for rejecting the application were in any way exceptionable.

6. There is no merit in the revision petition and the same is dismissed leaving the parties to bear their own costs.

A.A./M-128/L Revision dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.