MOHAMMAD AZAM KHAN, CJ. --- The captioned appeal with the leave of the Court arises out of the judgment of the High Court dated 7.6.2011 whereby second appeal filed by the appellant, herein, has been dismissed.
2. Precise case of the appellant is that he filed a suit for possession on the basis of the right of prior purchase in the Court of Senior Civil Judge Bhimber on 5.9.2002. It was alleged that the defendants executed a gift-deed in respect of land measuring 6 kanal 17 marla in village Pindi, Tehsil & District Bhimber. It was also averred that in fact the land has been sold against a price of Rs.500,000/- but it has been couched as gift-deed only to defeat the right of prior purchase. The suit was dismissed: The appeal before the District Judge failed. Second appeal was also dismissed by the High Court.
3. Mr. Zaffar Hussain Mirza, advocate, counsel for the appellant, argued that the case was fixed for arguments on 7.6.2011. He was a candidate for Azad Jammu & Kashmir Legislative Assembly and was busy in election campaign. He didn't appear in the Court on the said date. He requested (late)
Mr. Muhammad Ramzan Dutt, advocate, who appeared in the Court for seeking an adjournment.
He contended that he has filed an affidavit to the effect. The judgment has been delivered without hearing the counsel, therefore, it is not maintainable.
4. Mr. Masood A. Sheikh, advocate, counsel for the other side, frankly stated that he didn't remember that whether the learned counsel was present in the Court or not at the relevant date, however, he contended that the senior counsel has filed an affidavit, which is to be believed. {{BLUR PAGE}}
5. We have heard the learned counsel for the parties and perused the 'recordierbeTaOrd!oftbeiHigh 3 CIIIlit it6vegisgthau thwiease was fixed for arguinents)110 ri 5520 t 11 iwhettithe:4grderi was I recorded ?By ilhelDeputy Registrar that ,tteQt*to fortAhertiesrlarei prownt.ipTheiktdgesArave proceeded to participateitiitheineeting of Family*I -.1ginalleiraseinatijourned to 7.62011.7 On 7.6.201.1 ntr_saparatedalieraratOtmlecbtoAltritwtheivesOnee of the learned counsel Rt Oevtiae of kearinig,i.Onl t4 skiidgrnenpg.Onsthe record wh ein Mr: eta-zil ft ,w..4.,..,,I. .. , ,f,,, .Rt 111w , WVi. Ia. I '... .
J,0/ s.,,i. -__.- i.4 10111, u _ If15 ttar tiussain irza, alrFati.12As.,,s, rams e, 9p.Get.Tor' yin, in& learned Chief Justice'l(";"f the nighbOurt" f.Ia's a go reeord&A tte arguments lithe coutrgekasolldr.Rqiaffill. IlussaimMirza4 learnedriadvocatefiappearirif for the appellant irunablelterpointOutianyaitinreadingfbraionEleadirig of the record as welllattlherevideheelITThelabitvOrater-babrpresurhptionrthoth and we have to believe thefearndd Chiefilliatice.Ofitkielligh)Courtfthatthelleoimsel was present and:has4rgued,tbaskliiitibinlpresuniption,of truth 4glrebutted by the counsel forahelapPelliintfil paral4(ivioktliie haemorandunrofiappeit. The counsel for the appellantdmtakeit theipogitionAltittiliniWaornOt preneutirotheCourt on the date ofhearing:of theicageniiel;7.6201-h1It will bePsefulitaleproduce para 4(iv) of the memorandum of appeal, which reads asInder:,...Eirggraigre rsi livirrigbsit griV,40,0;Aif-ThaLthe ent qsaftalthi5 appellant lietbret ilidhourable IseqqA1 livf.))s:, ..j.: 4-ligh-.Colirt.Wasknotkptegelit inalle,cOurtionthe datleof; hearing of the ca6eif.:6101-06i201Lbutstild bbitottinblei High Court has shown the coun,sel ,us,presrt in the 11'57P; 'Jill lq?3Dtauirt',Awiteciaew&iiividel'etiun'sefig''aiiig'ced'5." 0 it; I ri 'Xi; 01 5,13') 311.1 .s.?MiSTS`31 'Jars inso... s.,p11 tstii ia Irsxri4 Ail 3'i The learned coungek for Abel lippellanti 1pdlalsiollileckaw affitlaniiiiik support of this averment. We have also perused the affidavit wherein the learned counsel has specifically alleged that he was a counsel in the case and was not present in the honourable. Court on 74.2011 when the above-titled case Was heard. This Court in a-number ofesst In 11,bkEved that ordinarily the findings recorded by the Court on a partiaitar point hOe to be believed but if these are rebutted by the counsel for the partiegArfiling an affidavit which is un-rebutted, then the affidavit of theiewmIdgettAN.ibuflOyfiliTtiSvert while dealing with the same proposition in 'the case reported as butriciCouncil Mirpur vs. M/s Flora Consumers Produots01:901.An 1rfiw6161 114f161114bserved as under:- "5. We have given our cluer-ebnsideration to the points raised and we are of the oeViimitalitk irrespective of the scope of the powers given to MilUtar.,the fact remains that no finding has . `1": 1 OheendgivenilbslikfienHitill)iedinV bli: illeOltrintii6fleatid3ibliVeD There is no .Aiiimi itOolemorandum of appeal filed in this Court thatv thepolni was pressed before the High Court =Al blc.4:4ri (10 duti(tig thtIcourritmeditum&ks bat thiPliaillYt-itis rintliesolvekt) tr)ntmlohN tKII Lovett didgioinv itils4 uoiltuigett4t1174 t4ttaltiffirgttlii6fits in the petition for leave to appeal.' TherebtilditinPlliBkillority in{{BLUR PAGE}} support of proposition that if a subordinate Court fails to give findings on a point, the aggrieved party must make positive averments in that regard in the memorandum of appeal, etc and support the same by filing an affidavit; otherwise the objection would be deemed to have been waived.......... In another case titled Kh. Muhammad Sharif vs. Syed Muhammad Yousaf Shah & 3 others [1998 SCR 153] observed as under:- "5. We have. Given due consideration to the arguments raised at Bar. So far the contention of the learned counsel for the appellant with regard to the jurisdiction of Additional District Judge is concerned, it may be stated that the High Court didn't give any findings on the point although the point was raised in the memorandum of appeal before the High Court, however, there is no affidavit in support of the contention that the point was also pressed during the course of arguments .............. 11 This view has been reiterated by this Court while recording judgment in another case titled Abdul Majid Khan vs. Razia Bibi & others (Civil Appeal No.98 of 2011, decided on 12.7.2011).
The result of the above discussion is that we accept the appeal, set aside the judgment of the High Court and remand the case to the High Court for deciding the same after hearing the counsel for the parties.