EJAZ AFZAL KHAN, J. --- This appeal with the leave of the Court has arisen out of the judgment dated 27.04.2010 of the Lahore High Court, Lahore whereby the learned Judge in its Chambers dismissed the petition filed by the appellant.
2. Points raised and noted at the time of grant of leave read as under:--- "Learned counsel, inter alia, contended that suit filed by the respondent pre-emptor was barred by time as mutation containing sale of the property was entered on 12th March, 1995 and attested on 14th March, 1995 whereas suit was filed on 13.07.1995. Contention raised by the learned counsel requires consideration, therefore, leave to appeal is granted. Parties are directed to maintain status-quo subject to notice."
3. Learned ASC appearing for appellant contended that where the appellant as per entries made in the daily diary of the patwari took physical possession of the suit property under the sale on 12th March, 1995, suit of the respondent instituted on 13th July, 1996 being barred by Section 30 of the Punjab Pre-emption Act was liable to be dismissed. The learned ASC next contended that mere signing and sending of notice by the respondent cannot be held to be a substantive compliance with the provision of Section 13 of the Act. The learned ASC next contended that where according to one of the attesting witnesses, so-called, he signed the notice in Urdu but the signature found thereon was in English, he can never be said to have attested it in accordance with the requirements of law and that the finding of the Additional District Judge and that of the learned Judge of the High Court in its Chambers being marred by misreading and non-reading of evidence cannot hold the field.
4. Responding to the argument addressed on the question of limitation, the learned Sr. ASC appearing for respondent contended that since the sale was made through mutation, Section 30(c) of the Punjab Pre-emption Act is not attracted to the case in hand. The learned Sr. ASC next contended that no argument regarding failure of the respondent to establish Talb-i-Ishhad in accordance with the requirement of Section 13 of the Act could either be addressed by the learned ASC for the appellant of considered by this Court when leave was granted only or the question of limitation the learned Sr. ASC to support nis contention placed reliance on the case of Mst. Bibi Jan v. Habib Khan and another (PLD 1975 SC 225) and Khushdil and 3 others v. The State (PLD 1981 SC 582).
5. We have gone through the entire record carefully and considered the submission of the learned ASCs for the parties.
6. It is correct that according to the entries in the daily diary maintained by the patwari, the appellant has been shown to have taken physical possession of the suit property under the sale, but for the purpose of reckoning limitation, the date of taking physical possession in terms of Section 30(c) of the Act, would be relevant only when the sale has been made otherwise than through a registered sale-deed or a mutation. Since the sale in this case has been admittedly made through a mutation, the period of limitation would be reckoned from the date of attestation of mutation. The argument of the learned ASC for the appellant that suit of the respondent is barred in view of the provision contained in Section 30 (c) of the Act, is, therefore, devoid of force.
7. The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre-emption. Talab-i-Ishhad which, in fact, is confirmation of intention to exercise a right of pre- emption cannot be held to have been established by mere signing and sending of notice. The witnesses examined in the Court, too, did not state anything regarding confirmation of such intention. One of the attesting witnesses, so called, rather turned the table on the respondent when he stated that he signed the notice in Urdu but the signature found thereon is in English. This also shows that he neither signed nor attested the notice in terms of Section 13 of the Act. The argument of learned ASC for the appellant that mere signing and sending of notice cannot be held to be a substantive compliance with the provision of Section 13 of the Act, is thus, not without substance.
'We, therefore, have .No hesitation to hoId Talb-i-Ishhad in the circumstances of the case cannot ce held to have been established in accordance with the requirements of Section 13 of the Act.
8. The argument that no other argument could either be addressed by the learned ASC for the appellant or considered by this Court, when leave was granted only to consider the contention of limitation, has not impressed us nor do the judgments rendered in the cases of "Mst. Bibi Jan v.
Habib Khan and another" and "Khushdil and 3 others v. The State" (Supra) cited by the learned Sr.
ASC for the respondent support such argument. In the first case it was laid down that once the leave is granted to examine a particular point, the entire case may be re-opened, if the circumstances of the case so require, for doing complete justice as is adumbrated by Article 187(1) of the Constitution. The relevant paragraph merits a look which reads as under:- "Ordinarily in criminal matters, once leave is granted to examine a particular point if the circumstances of the case so require, the entire case may be reopened "for doing complete justice" as adumbrated by Article 187(1) of the Constitution. The question is whether this principle can be extended to civil matters, where the dispute is inter parties? Article 187(1) is in general terms and does not distinguish between civil and criminal matters. Nevertheless the matters falls within discretionary jurisdiction of the Court, which it would not hesitate to invoke to prevent failure of justice. In which cases and to what extent this power of the Court should be invoked will depend on the circumstances of each case. In M. Saghir Bhatti & Sons v. The Federation of Pakistan and another, there is an observation which clearly indicates that certain points not raised at the time when leave was granted were subsequently allowed to be urged during arguments. Though in Khairaiti and 4 others v. Aleem-ud-Din and another, a point not taken in the petition for leave to appeal was not allowed to be urged but that was a case of review petition in which the point was sought to be raised for the first time. Support could be analogically drawn from this Court's decision in Karamat Ali and another v. Muhammad Younus and others, based in turn on Charan Dad and others v. Amir Khan and others. The question in that case was that the suit should be dismissed under Section 42 of the Specific Relief Act in the absence of a prayer for consequential relief for the recover) or in the alternative amendment of the plaint may be allowed at the final stage by the Supreme Court. It was held by my lord the Chief Justice that the Supreme Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or by taking away a valuable right accrued by lapse of time. But where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief the amendment would be allowed. It was further held that the amendment prayed for did not seek to alter the nature of the suit and merely brought in an additional claim which the appellants should have asked for in the suit and it would be a great hardship to defeat their right on a technical ground."
In the other case almost the same view was reiterated in the words which run as under:- "The approach in all these cases leads to one conclusion that this Court in matter of doing complete justice has not been handicapped by any technicality nor by a rule of practice. The observation relied upon by the learned Assistant Advocate General in the case of Muhammad Aslam, already noted above, does not in any way go against the above analyzed position. In that case the effect of grants of leave to appeal was stated in that once leave is granted, the whole case becomes open for examination. It was, however, clarified that the opening of the whole case for examination by the Court would not entitle a party as of right to urge any point on which leave was refused the observation does not in any way change or review the law declared in the case of Mst. Shamim Akhtar from which detailed observations have already been reproduced. Therefore, notwithstanding the fact that a party would not be entitled as of right to urge a point which having been considered, leave was not granted thereon, this Court would be competent in exercise of its power to do complete justice to examine points other than those on which leave was granted. The reliance of the learned counsel for the appellants thus, on Article 187 of the Constitution read with rules 5 and 6 of Order XXXIII of the Supreme Court Rules is not misplaced. Therefore, in the present case we hold that the grant of leave to appeal to Muhammad Nawaz, who has otherwise been found entitled to acquittal on extension of benefit of reasonable doubt, to examine only the question of his sentence, cannot operate as a bar for this Court to the acceptance of his appeal on merits regarding of guilty."
In the case of "Mst. Safyya and another v. Muhammad Rafique and 6 others" (PLD 1993 S.C. 62), this Court in a case which is almost similar view to the case in hand held as under:--- "It is true that normally this Court does not permit an appellant to urge a ground on which leave has not been granted, but at the same time, in a fit case if 'the dictates of justice so demand, this Court permits an appellant to urge any' other ground particularly when the same was an issue before the Courts below and is directly linked with the ground which lease has been granted. We may observe that Clause (1) of Article 187 of the Constitution empowers this Court to issue such directions, orders or decrees as may be necessary or doing complete justice in any case or matter pending before it. The power contained in the above clause is quite were and far-reaching. A party cannot be denied a relief on a technical ground if he is otherwise entitled to such relief. The controversy between the parties in fact related to the inheritance of the estate of the deceased Ghulam Rasul and in that context, the issue was raised by the respondents that the appellants were not the daughters of the said Ghulam Rasul". {{WORDS BLUR}} In the case of "Mst. Shamim Akhtar v. Syed Alam Hussain and others" (1975 SCM R 16), this Court after discussing the background of this practice and examining a string of judgments held as under:- "The rule is at best a rule of practice only developed as a result of the practice of the Judicial Committee and, therefore, like all rules of practice it can legitimately be departed from if the interests of justice so demand. The Judicial Committee itself adopted this principle in the case of Bibhabati v. Ramendra Narayan (6) and departed from an equally firmly established rule that it will not in civil matters interfere with a concurrent finding of fact. This Court also did the same thing in the case of Federation of Pakistan v. Ali lhsan (PLD 1967 SC 249) ".
9. The paragraphs reproduced from the judgments cited above leave no manner of doubt that jurisdiction of this Court under Article 187(1) of the Constitution being discretionary can well be exercised in the interest of justice. When that being the case, we don't understand why we shouldn't exercise it to upset a finding on the question of Talab-i-Ishhad which has not been established in accordance with the requirements of Section 13 of the Act.
10. The long and short of what has been discussed above is that, this appeal is allowed, the impugned judgment are set aside and suit of the respondent is dismissed with no order as to the costs.