' AMIR HANI MUSLIM, J.--- This appeal, by leave of the Court is directed against judgment dated 21- 6-2010 of the Peshawar High Court, whereby the Civil Revision filed by the appellant was dismissed.
2. Facts necessary for disposal of the present proceedings are that the appellant filed a suit for possession through pre-emption in the Court of Civil Judge, Ghazi, pleading therein that the respondents purchased the suit land through mutation No,3575 attested on 18-8-1998 for a sale consideration of Rs,7,28 000 but to defeat his right of pre-emption a fictitious amount of Rs,23,66,000 had been mentioned in the mutation. He further pleaded that the moment he came to know about the sale, he exercised his right of pre-emption 'by performing Talb-eMuwathibat and sent notices of Talb-e-Ishhad to the respondents through registered A.D. Post. The appellant claimed his superior right of preemption on the basis of co-owner and contiguity.
3.The respondents filed joint written statement taking legal and factual pleas. Out of the divergent pleadings of the parties, the trial Court framed various issues and recorded evidence of the parties and vide judgment and decree dated 19-7-2002, decreed the suit of the appellant. The respondents filed appeal whereas the appellant filed cross objections before the Appellate Court.
On 10-9-2002, the Appellate Court suspended the decree of the trial Court on cross objections.
Finally, the Appellate Court allowed the Appeal of the respondents and set aside the decree of the trial Court besides dismissing the cross objections of the appellant. Consequently, suit of the appellant was dismissed. Feeling aggrieved, the appellant filed Civil Revision before the learned Peshawar High Court, which was dismissed through the impugned judgment. Hence this appeal.
4.It is contended by the learned Counsel for the appellant that the omission of non-mentioning the date of notice of Talb-e-Ishhad in the plaint would not entail the penalty of dismissal of the suit. He contended that the appellant has, pleaded in the plaint the date, time and place where he made Talb-e-Muwathibat. The learned Counsel has further contended that the copies of very notice of Talb-e-Ishhad, postal receipts and acknowledgment receipts were annexed with the plaint. The notices annexed with the plaint contained the date and the required details including the names of the witnesses in whose presence the appellant made Talb-e-Muwathibat. He submits that the judgments of this Court passed in the cases of Munawar Hussain v. Afaq Ahmed (2013 SCM R 721), Allah Ditta v. Muhammad Anar (2013 SCM R 866) and Mian Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302) will not come in the way of the appellant.
5.He next contended that the appellant in terms of the decree of the trial Court was required to deposit the decretal amount within two months from the date of passing the decree and before he could deposit the amount, the respondents filed the Appeal and the Appellate Court suspended the operation of the decree of the trial Court, therefore, there was no occasion for the appellant to deposit the decretal amount within the time stipulated in the decree. He submits that in the first place, it was the trial Court which granted two months time to the appellant to deposit the decretal amount and secondly the provisions of section 25 of the Punjab Pre-emption Act 1991 (hereinafter referred to as the Act) are directory in nature and does not take away the discretion of the trial Court from granting time to a party to deposit the decretal amount.
6.It was further contended by the learned Counsel for the appellant that the learned High Court had fallen in error by holding that the witnesses of Talb-e-Ishhad were not trustworthy on the ground that there were material contradictions in their depositions. He submits that the contradictions referred to in the impugned judgment and the judgment of the Appellate Court were minor in nature and did not have bearing on the case of the appellant.
7.As against this, the learned Counsel for the respondents has contended that the omission to mention the date of notice of Talb-eIshhad in the plaint was fatal to the case of the appellant and the suit was rightly dismissed by the learned High Court and the Appellate Court. He next contended that the appellant failed to deposit the decretal amount within one month of passing the judgment and decree by the trial Court, therefore, he disentitled himself from the benefit of the decree as envisaged by section 25 of the Act.
8.His next contention was that the learned High Court as well as the Appellate Court have rightly discarded the evidence of the appellant and Shah Sultan Hassan P.W.4, witnesses of Talb-e- Ishhad, by holding that there were material contradictions in their depositions.
9. We have heard the learned Counsel for the parties and have perused the record. We have noticed that the appellant did mention the dates time and place of making Talb-e-Muwathibat in the plaint, but he did not mention the date of issuance of notice of Talb-e-Ishhad. We, however, have noticed that the appellant has annexed the copies of Notices of Talb-e-Ishhad along with postal and acknowledgment receipts with the plaint. These copies of notices Talb-e-Ishhad containing requisite details along with postal/acknowledgement receipts were produced and exhibited before the trial Court without any.Objection from the respondents' side. The material facts were given in the notices of Talb-e-Ishhad which formed part of the plaint, therefore, omission of the nature in the plaint would not be construed fatal to entail penalty of dismissal of the suit. The omission of the date of notice in the plaint stood cured, by annexing the copies of notices of Talb- e-Ishhad along with postal/acknowledgement receipts. The judgments cited by the learned Counsel for the appellant would not be applicable to the facts of the case in hand.
10. The trial Court has granted two months time: to the appellant to deposit the decretal amount in the Court and it is a matter of record that before the lapse of two months, the operation of the judgment and decree of the trial Court was suspended by the Appellate Court, therefore, there was no occasion of deposit of the decretal amount within one month in the given circumstances when the trial Court itself had granted two months' time to the appellant. Additionally, the provisions of section 25 B of the Act are directory in nature and do not entail any penalty.
11. As far as the contention of the learned Counsel for the respondents about contradiction in the depositions of the witnesses is concerned, we have gone through the evidence and do not find material contradictions in the statements of the appellant and Shah Sultan Hassan, P.W.4. The only contradiction pointed out by the Appellate Court that the appellant in his deposition has stated that he was sitting with his family members in the courtyard of his house when he was informed about the alleged sale of the suit property by Shah Sultan Hassan P.W.4, C whereas the P.W.4 in his deposition has stated that he informed the appellant at his house when he was sitting in the room alone. This contradiction cannot be termed as material contradiction, which could have bearing on the issue of making of Talbs, as the factum of intimating the appellant by Shah Sultan Hassan, P.W.4, is not in dispute in regard to date, place and time, therefore, the learned High Court as well as the Appellate Court had not correctly appreciated this portion of evidence and has erroneously discarded their evidence which evidence otherwise was trustworthy.
11(sic.) For the aforesaid reasons, this appeal is allowed, the impugned judgment as well as the judgment of the First Appellate Court is set aside and the judgment and decree of the trial Court, is restored. The appellant shall deposit the decretal amount within 30 days from the date of this judgment. The parties shall bear their own costs.