' AMIN-UD-DIN KHAN, J.---(C.M.No,1-2014) Learned counsel for the respondent states that if learned counsel for the petitioner is ready to argue the main writ petition today, he has no objection for acceptance of this application, which is supported by the affidavit of the learned counsel. Learned counsel for the petitioner states that he is ready to argue the writ petition today. In this view of the matter, this C.M. Is allowed and the order dated 13-1-2014 whereby writ petition was dismissed for non-prosecution is withdrawn and writ petition is restored to its original number. Office is directed to fix the same for today.
MAIN CASE
2. Learned counsel for the petitioner argues that he is plaintiff in a suit for pre-emption. He filed an application before the learned trial court on 31-10-2012 for permission to produce additional evidence. The prayer was that Patwari Halqa could not be produced inadvertently, therefore, application be accepted and Patwari Halqa be summoned and his statement be recorded. Reply was filed, same was contested. Learned trial court vide order dated 3-12-2012 dismissed the application. Revision was filed which also met with the same fate vide order dated 23-1-2013.
3. Learned counsel for the petitioner while relying upon "Zar Wali Shah v. Yousaf All Shah, and others" (NLR 1992 SCJ 655 and "Mst. Allah Rakhi v. Mst. Raj Bibi and others" [PLD 1957 (W.P) Lahore 70] argues that the learned trial court fell in error while dismissing the application on the ground that petitioner has not disclosed that how the evidence of Circle Patwari is necessary in this case.
Learned counsel argues that petitioner has produced in his evidence Jamabandi for the year 2001- 2002 as Exh.P.4 of Khata No, 545 and Jamabandi for the same year of Khata No, 562 as Exh.P.5 and Aks Shajra prepared by the Patwari as Exh.P.6. Argues that in the Jamabandi (Exh.P5) in "Khana Kaifiyat" two khasra numbers have been mentioned by the Patwari while preparing this document and further that to prove Exh.P.6 production of Patwari is necessary.
4. On the other hand learned counsel for the respondent while relying upon "Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others" (1991 SCM R 970) argues that against the revisional order arising out of civil litigation, constitutional petition is not competent. Learned counsel supports the impugned orders,
5. 1 have heard learned counsel for the parties and gone through the record with their able assistance.
6. Affirmative evidence of the plaintiff-petitioner was recorded. After that evidence of defendant was recorded. Learned counsel for the petitioner made a statement on 28-9-2012 that plaintiff does not want to produce evidence in rebuttal and after making that statement the application in hand was filed on 31-10-2012 when the suit was adjourned for final hearing and the reason mentioned in the application in para 4 is that inadvertently the Patwari could not be produced as a witness. Both the courts below have dilated upon this point and came to the conclusion that it is not a sufficient ground for non-production of Patwari at the relevant time. When the opportunity was granted to the plaintiff, even after the rebuttal evidence of the defendant. The learned counsel for the plaintiff-petitioner got recorded his statement that he does not want to produce evidence in rebuttal. After that in my view filing of application is not warranted by law, therefore, case-law referred by the learned counsel for the petitioner is not helpful for him as the facts and circumstances of this case are different. In the light of the law laid down by the Hon'ble Superior Courts I am unable to disagree with the findings recorded by both the courts below. Further I have noticed that plaintiff-petitioner opted to produce "Fard Khulasa" from the Jamabandi. He has not filed complete Jamabandi of the alleged Khewat on the basis of which he claims his right of pre- emption as Shafi-i-Khalit/contiguity as Khewat No, 545 (Exh.P4) consists upon 423 Kanals 3 Marlas and 1 Sursahi wherein plaintiff claims to- be owner of 8 Kanals and 18 Marlas and Khewat No, 562 which consists upon 334 Kanals and 15 Marlas, "Fard Khulasa" of which has been produced as Exh.P.5. In "Khana Kaifiyat" Patwari has mentioned two Khasra numbers i,e, 18/1 and 23/1. I am unable to understand why these numbers have been mentioned in "Khana Kaifiyat" when he was preparing Fard Khalasa Malkiyat. Plaintiff was required to produce the copy of complete Jamabandi in accordance with law. In this view of the matter, in my view recording of statement of Patwari will also not be helpful for the plaintiff-petitioner when he has not produced copy of complete Jamabandies containing compete Khasra numbers of the Khewat. Further in the light of law laid down by the august Supreme Court of Pakistan reported as "Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others" (1991 SCM R 970) a revisional order arising out of civil litigation cannot be challenged in constitutional jurisdiction except the petitioner could show that the orders impugned in the petition are without jurisdiction. No such defect has been claimed in the orders impugned in this writ petition. When the C courts below while passing the impugned orders have exercised the jurisdiction vested in them by law, in exercise of constitutional jurisdiction the same cannot be set aside. Resultantly, this writ petition having no merits stands dismissed.