' MUHAMMAD DAUD KHAN, J.--This revision is directed aginst, order dated 28-3-2011 of learned District Judge/Zilla Qazi, Swat, whereby appeal of petitioner against the order dated 24-11-2010 of learned Civil Judge, Swat was dismissed.
2. Precise but necessary facts of the case are that one Shehzad Gul, the predecessor of the respondents filed preemption suit against the petitioner and his mother Mst. Taj Bibi, alias Taj Mahal wife of Saifur Rehman, on the basis of alleged oral sale of the house given in the head-note of the plaint in lieu of Rs,2,00,000.
' It is pertinent to note that in the instant pre-emption suit, mother Taj Bibi was arrayed as vendee/defendant whereas her son Lutfur Rehman was arrayed as vendor/defendant in plaint on the basis of alleged oral sale.
3. In the pliant the date of knowledge of Talb-e-Muwathibat was shown to be performed on 26-9- 2001 at 10-30 a.m. At house of Sherzada on knowledge through informer Amanullah son of Sherzada, in the `Mains' consisting of Sher Zada son of Yar Muhammad and Adil Bacha son of Toor Lala, whereas notice of `Talb-eIshhad' was given on 1-10-2001, without mentioning the name of attesting witnesses in the plaint. The instant suit was dismissed on 10-12-2001 due to non- attendance of parties by Civil Judge-I/Illaqa Qazi, Swat. The plaintiff submitted an application for restoration of suit on 2-1-2002 and summons were issued to the defendants, as they were residing in Karachi. Despite the fact that defendants were not duly served, the application for restoration of suit was restored on 18-2-2002 and an ex parte proceeding against the defendants was initiated on the same date, and fixed on 4-3-2002 for ex parte evidence. On the said date plaintiffs/respondents produced only three witnesses i.e, plaintiff/respondent as P.W.1, Syed Fazal Hakim, Patwari Halqa as P.W.2 and one Amanullah the alleged informer as P.W.3 and closed their evidence without producing any witness of the alleged `Majlis' in which the 'Talb-eMuwathibat' was made, so much so, no evidence was recorded to prove secondary evidence of notice as required by law under Article 79 of the `Qanun-e-Shahadat Order', 1984. Followed by an ex parte decree of pre-emption granted against defendants on even date by Illaqa Qazi/ Civil Judge-I, Swat dated 3- 5-200; The plaintiffs/pre-emptors got attested Mutation No, 647 dated 11-6-2002 on the basis of said judgment and decree in absence, of defendants. Mst. Taj Bibi, defendant No,1, submitted an application for setting aside the said ex parte judgment and decree, on 14-9-2002, which was dismissed by trial Court on 24-11-2010. Afterwards, she died leaving her only son, the present petitioner. The present petitioner/defendant through an application under section 12(2) of C.P.C.
Dated 11-8-2005, challenged the said judgment and decree obtained on the basis of fraud, misrepresentation and collusion. That application was dismissed being time-barred by Illaqa Qazi/Civil Judge-1, Swat on 24-11-2010. Aggrieved by the said order, the petitioner preferred an appeal before Zilla Qazi, Swat who dismissed the same on 28-3-2011. Aggrieved by the above, judgments and order, hence, the instant revision petition.
4. The learned counsel for petitioner contended that original judgment and decree of pre-emption was illegal and 'void ab initio', as neither the 'Talb' was made, nor proved by evidence in the Court, as the original suit of pre-emption is fake and non-maintainable as no property was sold by the petitioner in favour of his mother. A fake story and collusive preemption suit was instituted against petitioner and his mother and got ex parte decree without performance of `Talbs. In accordance with law, therefore, the said judgment and decree has no validity in the eye of law.
' On the other hand, the counsel for the respondents/defendants supported the impugned judgments and orders of two Courts below and prayed for dismissal of the instant revision petition.
5. Arguments heard and record minutely perused with the valuable assistance of the counsel for parties.
6. The instant suit for pre-emption would reveal that the plaintiffs/respondents alleged that the vendee/defendant purchased the suit land through oral sale from his only real son without mentioning any date. The said suit was dismissed for non-prosecution on 10-12-2001. Thereafter the suit was restored by Civil Judge/Illaqa Qazi, Swat on 2-2-2002 and on the same date initiated ex parte proceedings against the alleged vendor and vendee i.e, mother and son inter se and on 4-3- 2002 was fixed for ex parte evidence of the plaintiff, the plaintiff produced himself as P.W.1, Syed Fazal Hakim, Patwari Halqa as P.W.2 and one Amanullah the alleged informer as P. W.3. The plaintiff neither produced any of the alleged members of Majlis namely Sher Zada son of Yar Muhammad Khan and Adil Bacha son of Toot- Lali, nor he produced the clerk of post office or postman of the concerned Illaqa and even the plaintiff 'failed to produce the scribe and attesting witnesses of the notice. Meaning thereby that the available evidence of the plaintiffs/ respondents disentitled him to get a preemption decree as demand of `Talb-eIshhad' is to be expressly made in presence of two truthful witnesses and for its proving, it is mandatory that both attesting witnesses be examined to determine their truthfulness. It is now a well-settled law that to prove `Talb-e- Muwathibar and `Talb-e-Ishhad' through evidence in Court is a sine qua non for the enforcement of the right of pre-emption recognized by the Khyber Pakhtunkhwa Pre-emption Act, 1987. The learned trial Court even did not bother to consider the ex parte evidence recorded by the plaintiffs/ respondents, which was devoid of evidence of scribe and attesting witnesses of notice of `Talb- eIshhad' and granted a decree of preemption in clumsy and slipshod manner. Besides this trial Court failed to consider the alleged sale deed which was not proved by the plaintiff in accordance with law and the trial Court did not, consider whether the alleged sale is a real one when the same is alleged to have been executed between the mother and son inter se, which is not appealable to prudent mind. The oral sale, when the alleged vendee and vendor deny the sale, the plaintiff/pre- emptor was required to prove the sale with solid and cogent evidence, as onus was on the plaintiff to prove that real sale has been taken place. Thus the ex parte decree granted by the Civil Judge in favour of plaintiff/respondent being against the real facts and circumstances is not tenable in the eye of law. The learned trial Court as well as the appellate Court did not bother to consider the evidence produced by the plaintiff. Despite non-appearance of defendants, trial Court was under obligation to see whether sale has actually taken- place or not? And also to ascertain the important questions relating to maintainability of suit and genuineness of claim of plaintiff arising out of ex parte evidence of plaintiff and decide the suit on merit to avoid any injustice to any party in his absence. There is no cavil to the legal provision that a decree drawn in utter violation of mandatory provision of law is 'void ab initio' and no limitation runs against such decree. Reliance is placed on 1987 SCM R 1543 "Khawaja Muhammad v. Marduman Babar Kahol", 2004 YLR 1050 "Muhammad Ramzan v. Fazal Wahid". All the procedures are provided under the law to promote and provide justice to the parties and not for the deprivation of valuable rights/properties of the parties. It is a golden principle of law that no one should be knocked out on technicalities rather the rights of persons/ parties be determined keeping in view the facts and circumstances of each and every case. As discussed above, the judgment and decree of Illaqa Qazi/Civil Judge-1, Swat dated 3-5-2002 is against the law of pre-emption under section 13' of Khyber Pakhtunkhwa Preemption Act, 1987 and by not accepting the application of petitioner under section 12(2), C.P.C. For setting aside the above mentioned ex parte decree of pre-emption dated 24-11-2010 by the trial court and by not accepting the appeal filed by the present petitioner, by the appellate Court dated 26-3-2011 have not exercised their jurisdiction vested in them in accordance with law and it is held that the impugned decree of trial Court is based on alleged bald assertion of the preemptor.
For what has been discussed above, the instant civil revision isallowed, impugned judgments and decrees/ G orders of both the Courts below are set aside by accepting the application of petitioner for setting aside ex parte decree and as consequence thereof the suit of plaintiff is hereby dismissed and resultantly on the basis of abovementioned Mutation bearing No, 647 dated 4-6- 2002 stands cancelled, with no order as to costs.