' MAULVI ANWARUL HAQ, J.---Vide Mutation No. 530 attested on 15-5-1997, respondent purchased the suit-land mentioned in the plaint for a consideration of Rs.1,90,000. On 7-6-1997, the petitioner filed a suit for possession of the suit-land by pre-emption. According to him the land had actually been purchased for Rs.1,30,000. She claimed to be a co-sharer in the suit-land. Performance of Talbs was claimed. The respondent in his written statement objected that the petitioner herself participated in the sale proceed and she had waived her right and that the suit had been filed for her benefit. Other allegations were denied. Inter alia, following Issue No.2 was framed by the learned trial. Court;-- 2-Has the lady plaintiff fulfilled all the pre-conditions necessary to exercise the right of preemption?
2. Evidence of the parties was recorded. Under Issue No.1 learned trial Court found that the petitioner has a superior right of pre-emption. Under Issue No.3 it was found that the land had in fact been sold for a sum of Rs.1,90,000. Issues Nos.4 to 7 were answered in favour of the respondent with reference to the findings recorded on Issue No.2 (wrongly mentioned as Issue No.1 in the said judgment). Issue No.2 was answered against the petitioner. Consequently the suit was dismissed by the learned trial Court vide judgment and decree dated 2-3-2001. The petitioner filed first appeal which was heard by learned Additional District Judge. Before learned Additional District Judge only Issue No.2 was pressed by both the parties. Findings of the learned trial Court were upheld and consequently the suit was dismissed.
3. Learned counsel for the petitioner contends that both, the learned Courts .Below have misread the evidence on record and further have misapplied and misconstrued the law on the subject which renders their respective judgments to be without jurisdiction. Learned counsel for the respondent has supported the impugned judgments and decrees with reference to findings recorded by the learned Courts below on the said Issue No.2. He has also objected that this C.R. Is barred by time.
4. Learned counsel for the petitioner rejoins to press p.M. No.1/C of 2002 wherein a prayer has been made for condonation of delay. Before proceeding further I intend to take up the said application first. As noted by me above, the learned Appellate Court announced the judgment on 20-6-2001.
Copy of this judgment and decree was applied for on 25-6=2001 and was supplied on the same day. Copies of the judgment and decree of the learned trial Court and other relevant documents were applied for on 9-7-2001 and were supplied on 12-7-2001. This C.R. Was filed in this Court on 21- 9-2001. Office has objected that it is time-barred by two days.
5. Learned counsel for the petitioner contends that since it was necessary to file the copies of the records of the trial Court, time consumed in obtaining the same be also deducted in terms of section 12 of the Limitation Act, 1908. Now although section 12(2) of the Limitation Act does not find mention of a revision as it refers to a suit, appeal or an application. However, first proviso to section 115(1) (added vide section 13 of C.P.C. (Amendment) Ordinance, 1980), provides in mandatory terms that a person filing an application under section 115(1) of the said Act shall furnish copies of the pleadings and order of the subordinate Courts. Now it is the second proviso to the said section 115(1) which provides that the application shall be made within 90 days of the decision of the subordinate Court. However, it is subject to provision of copy of such decision within three days thereof. To my mind where law requires that in order to avail remedy in a superior Court, copies of the records are to be furnished, section 12(2) of Limitation Act have to be construed accordingly. In some what similar circumstances a matter came up before the Honourable Supreme Court of Pakistan in case "Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another" PLD 1963 SC 147. I may note here that the said judgment was given at a point of time when present section 115(1) of Limitation Act was there on the statute book as section 115, C.P.C. However, their Lordships while distinguishing revision provided 'under Karachi Rent Restriction Act, 1953 and the remedy provided under section 115, C.P.C., held that section 12(2) of Limitation Act, 1908 is to be construed broadly so that it will be deemed that it includes the said revision. I may further note here that primary consideration before their Lordships for laying down the said law was primarily that both the two terms have similar features except the limitation laid down in section 115, C.P.C.
Now applying the said rule to the stated position which exists at the present, in my humble view a party filing a revision application would be entitled to exclusion of time. Now there is another aspect of the matter i.e. That under the said second proviso it is the subordinate Court who is required to provide copy of the decision to the parties within three days. Although it is no body's case that the copies were supplied in the manner prescribed but upon a plain reading said 90 days period has to start after the expiry of the said three days in the statutory period meant for provision of copies. In this manner, the C.R. Which in any case has been filed within 93 days, would be within time for all purposes. I may further note here that earlier the rule was that a party challenging the decision of two Courts below would not be entitled to the exclusion of time required for obtaining the copy of the judgment and decree of the appellate Court, but later Honourable Supreme Court of Pakistan held in the case of Amir Hussain Shah (deceased through legal heirs) and others v. Umra and 11 others 1986 SCM R 800, that such a party would be entitled to exclusion of time required both for copies of appellate decree as also the trial Court judgment. Thus seen from every angle, this C.R. Is very well within time. Objection is accordingly over ruled.
6. I have gone through the copies of the records. Now in para.2 of the plaint it was stated that the petitioner came to know about the sale through Muhammad Ramzan and Abdul Latif and she immediately made first talb. Talb-e-Ishhad has been stated to have been made by means of a notice sent under registered cover A.D. Now the petitioner-lady appeared as P.W.1. She stated that Muhammad Ramzan and Abdul Latif told her about the sale of the land on 15-5-1997 when her daughter was present at her house and when she got the information she stated that:-- {{URDU TEXT}} ' In her cross-examination she stated the same words. This time she stated as folllowws: -- {{URDU TEXT}} ' Now learned trial Court has took up the said statement from the entire statement and has quoted the same in his judgment. He has further observed that the plaintiff has not mentioned the date, time and place where she was informed by the witnesses about the sale of the suit-land in the plaint and has abruptly concluded that Talb-e-Mowathibat has not been made.
7. Now learned Addl. District Judge . Has proceeded to observe that the said words do not constitute a Talb and then he has proceeded to observe that the lady has stated that witnesses who informed her of the sale remained with her for two hours and thereafter she announced that she would file a preemption suit.
8. To my mind it is a clear misreading of evidence on record. Note appended to section 13(1) of Pre- emption Act clearly lays down that any words indicating intention to exercise right of pre-emption are sufficient. It was stated case of the lady that when she was informed she stated that she would file a pre-emption suit. To my mind this is sufficient to prove first Talb. So far as other observations are concerned, statement does not at all give the said impression as gathered by the learned Addl.
District Judge. Now so far as the Talb-eIshhad is concerned, it was stated in the plaint that notice was sent through a counsel. Copy of this notice is Exh.P.6. It is dated 21-5-1997 and well within time prescribed by law. It contains reference to the first talb and demands transfer of land for the consideration paid. Now this document was produced by Mukhtaran Bibi while appearing as P.W.4 on 7-3-2000. Abdul Latif, P.W.5 and Muhammad Ramzan, P.W.6 are the attesting witnesses. Postal receipt of the notice is Exh.P.2. Regarding the records it was stated by Post Master, P.W.7 that the same is destroyed after two years. Now I do not find any reference to the statements of these witnesses in any of the two impugned judgments.
9. Another fact that has influenced the learned Additional District Judge is that the vendor i.e. Dani Bagum was the wife of the petitioner's brother. Now this fact has been made the basis of the observation rather the assumption drawn by the learned Additional District Judge that Dani Begum must have talked to the petitioner-lady and she might have refused to purchase the land. The observations to say the least are perverse. There is, of course, no evidence that the said lady ever came into contact with the petitioner in the matter of said sale.
10. Another aspect lost sight of by the learned lower Courts is that the mutation was attested on 15- 5-1997. On the same day information was received and first Talb was made.
11. Having thus examined the records, I find it to be a case of not only misreading but non-reading of evidence on record.
12. At this stage, learned counsel for the respondent tried to press Issue No.8 pertaining to alleged improvement affected by the respondent on the suit-land. I find that the learned trial Court had left this issue undecided whereas it was not pressed before the learned Court of first appeal. Be that as it may, I find that in the written statement it was simply stated by way of preliminary objection No.8 as follows:-- {{URDU TEXT}} ' It will be seen that no particulars even value of improvement was stated. The respondent appeared in witness-box as D.W.1 and did not utter even a single word in support of the said Issue No.8. In this view of the matter, no useful purpose would be served in sending back the case for decision on this issue as the same can be disposed of on the ground that there are neither proper pleadings and of course not an iota of evidence in support of the same on record.