' This second appeal has arisen out of a pre-emption suit filed by the appellant, Sultan Ahmed. The suit was resisted by the respondent, Muhammad Anwar, inter alia, on the ground that the appellant had waived his right of pre-emption. His plea did not find favour with the Civil Judge who heard the suit. It was, therefore, decreed by the learned Civil Judge. The respondent went in appeal before an Additional District Judge. That appeal was accepted. As a result, the judgment and decree of the learned trial Court were set aside and the appellant's suit was dismissed. The appellant has, therefore, come up in second appeal to this Court.
2. Learned counsel for the appellant contended that it was alleged by the respondent in his written statement that the appellant had actively participated in the bargain of the sale in dispute and had thus waived his right of pre-emption. At the stage of evidence also when the respondent appeared as his own witness (D. W. 4) he made statement to the same effect. After about one year of the recording of his evidence, however, the respondent produced additional evidence, in the shape of the statements of for witnesses, suggesting that before the suit land was purchased by the respondent, it was offered to the appellant but he had declined to purchase it. Learned counsel for the appellant maintained that since the additional evidence produced by the respondent was not in accord with his pleadings it could not be taken into consideration. In this connection he relied on provisions of Order VI, rule 2 of the Code of Civil Procedure and two precedent cases reported as Yusuf v. Hashimbhoy and Co. And others (1) and Government of West Pakistan know Punjab) through Collector, Bahawalpur v. Haji Muhammad (2). It was further submitted by him that the evidence produced by the respondent was discrepant and, therefore, it did not justify the finding of waiver recorded by the first appellate Court. The authority relied upon by him in this behalf was Kidar Nath and others v. Bagh Singh and others (3).
3. On the other hand, learned counsel for the respondent invited my attention to some observations of the trial Court to contend that like the first appellate Court, the trial Court was also of the view that the appellant had himself declined to purchase the disputed land. Thus, according to the learned counsel, there was concurrent finding of the two Courts below on the question of waiver. It was, therefore, vehemently urged by him that the said finding, howsoever erroneous, could not be disturbed in second appeal. He also controverted the plea put forth by the learned counsel for the appellant that the additional evidence produced by the respondent was not in tune with his averments in the written statement. According to him, while producing additional evidence the respondent had simply elaborated what he had contended, in brief, in the written statement and, therefore, there was no good reason for excluding the additional evidence from consideration.
It was also pointed out by him that some of the witnesses who had appeared against the appellant were related to him and even otherwise their evidence was not open to any valid exception.
4. To start with, I would like to examine the argument of the learned counsel for the appellant that the additional evidence adduced by the respondent was beyond the scope of his pleading. In the written {{FOOT NOTE}}
(1) PLD 1966 Kar. 456 (2) p L D 1976 SC 469
(3) AIR 1937 Lab. 504 {{FOOT NOTE}} ' statement, it was alleged by the respondent that the appellant "actively participated in the sale" and "himself got struck the transaction in dispute" and had "therefore waived his right of pre- emption". This was denied by the appellant in the replication filed by him. The issue framed by the learned Court in this behalf reads thus: "Is the plaintiffs stopped by his conduct to bring the suit and has also waived his right if any."
' The patties closed their evidence on the issues framed in the case including the issue of waiver, on 21st February, 1974. That evidence included the statement of the respondent, Muhammad Anwar as D. W. 4 which was to the effect that the appellant had himself arranged the bargain. In rebuttal, it was stated by the appellant, Sultan Ahmed, as P. W. 1, that he had no knowledge of the sale. When cross-examined he denied that the bargain was struck in his presence. Thereafter, on 20th July, 1974, the respondent made an application for permission to produce additional evidence to show that the appellant had himself struck the bargain and had undertaken, in the presence of the witnesses, that he would not file a suit for pre-emption. The application was opposed by the appellant. On 20th January, 1975, however, the ,appellant's counsel gave up his objection to the production of additional evidence on payment of reasonable costs. The learned trial Court, therefore, allowed the respondent to produce additional evidence on payment of Rs, 50 as costs.
On 15th February, 1975, the costs were paid and the additional evidence was recorded on 21st June, 1975. The appellant was allowed an opportunity to produce additional evidence in rebuttal of the additional evidence led by the respondent but he did not produce anymore evidence. It would, therefore, appear that the appellant had, through his counsel, agreed to the production of additional evidence by the respondent knowing full well that the additional evidence would be in respect of the alleged commitment made by the appellant that he would not pre-empt the sale in dispute. Thus, he cannot now object to the additional evidence produced by the respondent. It is true that in the cases of Yusuf and Government of West Pakistan relied upon by the learned counsel for the appellant it was ruled that a party cannot prove a case different from the one pleaded by him but where a party himself consciously permits the opposite-party to do so it cannot subsequently turn round and take exception to his so doing. Since, in the present case, the appellant's counsel had agreed to the production of additional evidence knowing the exact nature thereof and being aware of the fact that the plea sought to be substantiated thereby had not been specifically raised in the written statement, and simply wanted the respondent to be burdened with some costs which were actually paid by him, it is no longer open to the appellant to contend that the additional evidence could not be taken into consideration for deciding the question of waiver.
The present case is, therefore, distinguishable from the cases of Yusuf and Government of West Pakistan relied upon by his learned counsel. Resultantly, I hold that the additional evidence produced by the respondent was rightly considered by the lower Courts.
5. Now, before proceedings further, I will look into the plea raised by the learned counsel for the respondent that there is a concurrent finding of fact by the two Courts below on the question of waiver and, therefore, it cannot be subjected to scrutiny by this Court, in second appeal. The fact of the matter is that the trial Court had decided the issue of waiver against the respondent while the first appellate Court has recorded a finding to the contrary. It is true that during the course of his discussion on the issue it was remarked by the learned trial Court that the evidence of the defence witnesses was convincing to his mind but ultimately he did not rely on that evidence for the reason that the version put forth by the said witnesses was an afterthought. It seems that being a novice, the learned Civil Judge, who handled the case at the stage of trial, could not express himself properly and by saying that the evidence of the defence witnesses was convincing to his mind he wanted to convey that prima fade the version, as given by them, looked alright. However, ongoing deep into it, and in the light of the attending circumstances, he decided not to rely on their evidence and answered the issue in favour of the appellant. Be that as it may, since it was clearly held by the learned trial Court that the issue of waiver had not been proved but the learned Additional District Judge had taken a contrary view it is a case of variant findings and not of concurrent finding. I am, therefore, unable to agree with the learned counsel for the respondent that the finding on the question of waiver was a concurrent finding and, therefore, it cannot be disturbed in second appeal.
6. Since the two Courts below are not in agreement on the question of waiver and it has been submitted by the learned counsel for the appellant that certain important pieces of the respondent's evidence had not been taken into consideration; I have decided to examine the respondent's evidence with a view to determining as to how far the plea raised by the learned counsel for the appellant is borne out by the record.
7. According to the learned counsel for the appellant, the learned Additional District Judge had omitted to consider the following points in relation to the evidence of Muhammad Anwar (D. W. 4), Mahajan (D. W. 4/1), Rehmat (D. W. 5) and Ismail (D. W. 6) who were examined by the respondent on the question of waiver:-
(1) Although the said witnesses of the respondent had stated that they were present at the time when the transaction was settled, the respondent did not say that they were present on that occasion.
(ii) According to Ismail, he was with the respondent when the latter left Narowal for village Dhabiwala to strike the bargain but the respondent did not make a statement to that effect.
(iii) It was deposed by Mahajan, who was the Mukhtar of the vendors, that Ismail came to the place of bargain to smoke huqqa which showed that his coming there was just a coincidence, but according to Ismail he had purposely gone there to settle the bargain.
(iv) According to Muhajan, an agreement of sale was executed after the striking of the bargain. No explanation whatsoever has been given as to why it was not got signed by the appellant if he had no objection to the sale in question.
(v) No suggestion was made to the appellant, when he appeared as P. W. That he had refused to purchase the disputed land.
(vi) The respondent did not himself say that the appellant had not agreed to purchase the land in question.
(vii) Rehmat does not belong to the place where the bargain was struck. He said that he went there to purchase cattle but admittedly, he did not purchase any. He also said that the appellant had no cattle to sell.
No plausible explanation has been offered to explain the discrepancies, etc., pointed out by the learned counsel. I am, therefore, unable to overlook the same. As laid down in the aforementioned case of Kidar Nath clear and cogent evidence is required for making out a case of waiver but, in view of what had gone above, the evidence produced by the respondent is not of that type. It is all oral and discrepant. It also stands rebutted by the testimony of the appellant. I am, therefore, unable to uphold the finding of the learned Additional District Judge and agree with the learned trial Court that the respondent had failed to substantiate his plea of waiver.
5. There is no dispute left between the parties so far as the other issues are concerned.
6. 1, therefore, accept the appeal with costs, set aside the judgment and decree of the first appellate Court and restore the judgment and decree passed by the learned trial Court.