1. SHUJAAT ALI KHAN, J.--- Through this single order I intend to dispose of this appeal as well as Civil Revision No.1508 of 2012 and Criminal Original No.90 of 2012 as all these matters have emanated out of a suit for possession through pre- emption filed by Professor Syed Khursheed Alam (hereinafter to be referred as appellant/petitioner) againstCh.MuhammadAslam(hereinaftertobereferredas respondent).
2. 2.Succinctly, the appellant/petitioner instituted a suit for possession through pre-emption qua landed property situated within the revenue estate of village Manawan Tehsil Cantt. District Lahore. Along with the said suit, the appellant also filed an application for temporary injunction which was dismissed by the learned trial Court vide order dated 16-12-2009 against which the appellant has instituted the present appeal. In addition thereto, during pendency of the suit the appellant/ petitioner also filed an application to produce secondary evidence which was dismissed by the learned trial Court vide order dated 12-4-2012 against which the appellant/petitioner has filed Civil Revision No.1508 of2012whereasCriminalOriginalNo.90of2012hasbeenfiled withthegrievancethattherespondenthaschangedthecharacterofthepropertyindisputeinpresenceoftherestraintorderissued by this Court vide order dated 14-1-2010 passed in Civil Miscellaneous No.1 of 2010.
3. 3.Learned counsel for the appellant/petitioner in support of his appealsubmitsthatsincetheappellantfulfilsalltheconditionsfor grant of temporary injunction, his application for the same relief was illegally dismissed by the learned trial Court; that in case during pendency of the suit the respondent is allowed to alienate the property in any manner whatsoever the same would lead to multiplicity of proceedings which being against the spirit of law cannot be approved; that in case the character of the property is changed during pendency of the suit in the eventuality of the success of the appellant/petitioner, the loss occurred to him due to the said act of the respondent, would not be made good.
4. 4In support of Civil Revision No.1508 of 2012, the learned counsel for the appellant/petitioner contends that due to some inadvertence, instead of original postal receipt another receipt was exhibited by the learned trial Court despite the fact that in the List of Reliance the mention of Receipt No.1180 dated 27-8-2005, is very much present; that since the original notice of Talb-i-Ishhad was sent to the respondent, therefore, only copy was left with the appellant/petitioner which was produced by him before the learned trial Court and instead of exhibiting the same in a proper way the same was only marked; that to prove the contents of Postal Receipt No.1180 dated 27-8-2005, intending to be produced by the appellant in the secondary evidence the examination of postman concerned is inevitable; that though the name of the said witness is not mentioned in the list of witnesses, however, under Order XVIII, rule 4, C.P.C. the court is bound to record his testimony and that in case the appellant is not allowed to produce secondary evidence, in addition to examination of the postman concerned, the appellant would suffer an irreparable loss and incalculable injury. In addition to his oral submissions learned counsel has relied upon the cases reported as Zar Wali Shah v. Yousaf Ali Shahand 9 others (1992 SCMR 1778), Iqbal Parekh and 4others v. Karachi Building Control Authority (K.B.C.A.) through Chief Controller of Buildings (C.C.O.B.)
5. Karachi and 4 others (2008 CLC 1334), Mst. Rukhsana Bibi v. Muhammad Ansar (2006 YLR 666), Haji Muhammad Tufail v.
6. Muhammad Iqbal (2005 MLD 688) and Arshad Ali and another v. Abdul Rashid and 2 others (PLD 1980 Lahore 382).
7. 5.While arguing the contempt petition learned counsel for the appellantcontendsthatsincetherespondenthasviolatedthe injunctive order passed by this court his act deserves stern action by this Court.
8. 6.On the other hand learned counsel appearing on behalf of the respondent, while opposing the prayer made in this appeal, submits that since the appellant/petitioner has to establish his superior right of pre-emption and performance of requisite talbs the ingredients necessary for the grant of temporary injunction are missing in his case, therefore, the learned trial Court has rightly dismissed the application filed by the appellant/petitioner; that the right of the appellant/petitioner is fully secured under the principle of lis pendens; that even according to the contents of the plaint of the suit, there is a little chance of the appellant/petitioners' success.
9. 7.While opposing the claim made in the Civil Revision No.1508 of 2012 learned counsel contends that he has no objection if the postal receipt as well as notice of Talb-i-Ishhad are exhibited in evidence but to the extent of the examination of postman the appellant/petitioner contests on the ground that the evidence of both the parties has been concluded; that the name of the postman does not figure in the list of witnesses filed by the appellant/petitioner; that no reason has been advanced for non-production of the said witness by the appellant/petitioner while producing his evidence in affirmative; that the respondent has already exposed his defence and in case the postman is allowed to be examined, his case would be prejudiced and that appellant/petitioner cannot be allowed to fill up the lacunas in his case by producing the postman at such a belated stage and that too in a pre-emption suit.
10. 8.While dealing with the prayer contained in the contempt petition, learned counsel submits that the respondent has not violated any order passed by this court, therefore, the contempt petition deserves to be dismissed. In support of his oral submissions learned counsel has referred to the cases reported as Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) and Akbar Khan and 6 others v. Allied Bank of Pakistan through President and 2 others (2011 YLR 496) and Kohinoor Industries Limited Project Kohinoor Textile Mills Ltd. through Chief Executive v. Sargodha Spinning Mills Limited through Chief Executive and 2 others (2005 CLC 1781) and Muhammad Zahid Pervaiz v. MuhammadShafqat Iqbal (PLD 2007 Lahore 377).
11. 9.Learned counsel for the appellant/petitioner, while exercising his right of rebuttal, submits that by recording evidence of the postman no prejudice would be caused to the respondent rather the same would further the cause of justice. Further adds that respondent would be at liberty to discard the credibility of said witness by putting him to the test of cross- examination. Moreover, the respondent can lead evidence in rebuttal.
12. 10.I have heard learned counsel for the parties and have also gone through the documents appended with this petition in addition to the case-law cited at the bar.
13. 11.Firstly while dealing with the question regarding dismissal of the application of the appellant filed under Order XXXIX, Rules 1 and 2, C.P.C., I am of the view that while filing the said application the appellant/petitioner prayed as under:--- "In the light of afore-said submissions it is accordingly prayed that the respondent may kindly be instructed from further alienating the suit-land and also be restrained from changing nature and character of the suit-land. The respondent may also be restrained from putting the suit-land to any other use whatsoever. All these reliefs may kindly be granted to the applicant till the final decision of the titled suit".
14. 12.For grant of temporary injunction, a party has to prove three ingredients viz prima facie case in his favour, balance of inconvenience tilts in his favour and in case the sought for injunction is not granted, he would suffer an irreparable loss.
15. Insofar as the case in hand is concerned, the appellant/petitioner has filed a suit for possession through pre-emption which is to be decreed after adjudging the superior right of the appellant/petitioner and the performance of requisite talbs. Until and unless, the claim of the appellant/petitioner is established after recording of evidence, it cannot be said that balance of inconvenience in any manner lies in his favour. Further, the question of prima facie case in favour of the appellant/plaintiff would also be seen by the learned trial Court after scanning the evidence of the parties. As far as the question of irreparable loss is concerned, suffice it to observe that the question of alienation by the respondent during pendency of suit would be taken care of under the principle of lis pendens in case the appellant/petitioner succeeds in his suit. Insofar as to the extent of restraint order for changing nature and character of the suit-land is concerned, I am of the view that respondent, being owner, is vested with the right to utilize the property according to his own choice and any injunctive order against exercise of his rights would cause irreparable loss to him as compared to the appellant/petitioner. An injunctive order cannot be issued in favour of the plaintiff of a pre-emption suit as a routine as the same would amount to deprive of the vendee from his vested right. Reliance in this regard is placed on Gul Zare Khan v. Zafarullah (2011 MLD 138). This court in the case of Muhammad Zahid Pervaiz (supra) has inter alia held as under:--- "In the pre-emption suits, I am of the view that the injunctive order should not be lightly granted because the vendee/defendant in such cases is the absolute and exclusive owner of the property till the time the decree for the pre- emption is passed in favour of a pre-emptor. Without going into the question, whether the right of pre-emption is predatory or otherwise, but it is settled, that the decree for the pre-emption under the Act, 1991 is subject to a very important proof about the making of two Talbs about which, it cannot be prima facie ascertained, whether the Talbs have been made or otherwise, especially this shall be true for Talb-e-Muwathibat. Thus, even if the pre-emptor has prima facie established his right of pre-emption on the record, till the owner of the property cannot be put under restraint to use his property, which may tantamount to the breach of his fundamental right as enshrined by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973. The injunction, therefore, should not be ordinarily granted regarding the suit property which is a bare land, and the claim of the plaintiff/pre-emptor is to simply restrain the vendee/defendant from the improvement of his property till the final decision of the case, which may take years for its final adjudication. Obviously, the development and the improvement of the land made by the vendee during the pendency of the case shall be at his own risk and cost and he shall not be entitled to any compensation for the construction/development etc. from the pre- emptor made after the institution of the suit.
16. However, where a suit for the pre-emption has been filed with regard to any property having a superstructure, which is a part of the sale and the vendee intends to demolish the superstructure in order to defeat the right of substitution of the pre-emptor, may be the Court, on the basis of the facts of that case, is inclined to grant the injunction. But, in the instant case, this is not the position, and the petitioner only wants to prevent the respondent/vendee from improving his property by raising the construction. When questioned in this behalf Mr. S.M. Masud, learned counsel for the petitioner, states that in this manner, the access to the petitioner's land shall be so what hindered. This is not the case of the petitioner even in his application and he has also not been able to prove any right of easement from the suit-land or any other legal obligation on part of the respondent not to raise the construction over the property which he has validly purchased".
17. 13.The sequel of the above discussion is that the learned trial Court has committed no illegality while dismissing the application filed by the appellant/petitioner under Order XXXIX, rules 1 and 2, C.P.C.
18. 14.Insofar as the case-law cited by the learned counsel for the appellant/petitioner on this point is concerned, I am of the humble view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the said case only order was passed to the extent of status quo whereas according to the contents of the application filed by the petitioner/appellant, he sought an injunction restraining the defendant to alienate the property in dispute in addition to changing its character.
19. 15.Now coming to the claim of the petitioner/appellant contained in Civil Revision No.1508 of 2012, I am of the opinion that since the factum of the original postal receipt has not only been mentioned in the list of documents submitted by the appellant/petitioner but the same is also proved from the fact that some other receipt was exhibited in evidence during the course of documentary evidence. Likewise, it is of common knowledge that the original notice of Talb-e-Ishhad, as contemplated under section 13(3) of the Act, is sent to the defendant and copy thereof is retained by the pre-emptor.
20. Admittedly, not only the appellant/petitioner has produced the witnesses of Talb-e-Ishhad but has also produced copy of notice which has been marked by the learned trial Court. In this backdrop, the learned counsel for the respondent has wisely opted not to oppose the prayer to the extent of exhibition of the postal receipt and the notice as secondary evidence.
21. 16.Insofar as the request of the learned counsel for the appellant/ petitioner that permission be granted to examine the postman is concerned, I am of the view that there is no cavil with the proposition that the court has ample power to allow any party to adduce additional evidence oral as well as documentary, however, the same power is subject to the condition that there are sufficient reasons for non-production of the evidence at the relevant time and the evidence of the said witnesses is necessary for the just decision of the case. Admittedly, neither the name of the postman has been mentioned in the list of witnesses submitted by the appellant/petitioner nor the appellant/ petitioner submitted any application for recording of his evidence while producing evidence in affirmative. Further a perusal of the application filed before the learned trial Court shows that no reason for non-production of the said witnesses at the relevant time has been mentioned. The reason advanced by the appellant/petitioner for production of the postman is to prove the contents of Postal Receipt bearing No.1180 dated 27-8-2005. In this respect I do not find myself in agreement with the learned counsel for the appellant/petitioner for the reason that if production of postman as witness was so important to prove the contents of the postal receipt the appellant/petitioner has not come forward with the reasons that why the said postman was not produced while earlier producing the receipt in evidence which could not be marked due to some inadvertence rather some other receipt was exhibited by the trial Court. As the respondent has already showed no objection to the exhibition of the said receipt, therefore, the reason advanced by the appellant/petitioner for production of the postman has no worth.
22. Considering from another angle admittedly the case is pending announcement of decision after completion of evidence of the parties and the petitioner/appellant having come to know about the fact that he could not produce the postman concerned to establish the delivery of notice of Talb-e-Ishhad to the respondent, he has filed the instant application to makeup the deficiency during the course of evidence. There is no denying the fact that additional evidence can be allowed to be produced at any stage but the same should not be aimed to fill up the lacunas of any party. In this case reliance is placed on the case reported as Mst. Nasreen Akhtar v. Mohsin Ali (2011 CLC 1206), wherein it has inter alia been held that--- "The rationale behind said provisions to ensure that parties produce their evidence in one go and not in piecemeal, yet provide discretion to a court of law, to allow evidence to be produced only in order to render complete justice. Surely, this clear and vast authority with the court of law should not be exercised to allow one party to improve his case or to provide a second chance to him to fill up the lacunas in the case".
23. 17.Since the appellant/petitioner is bound to prove Talb-i-Ishhad on thebasisofevidenceadducedbyhim,hecannotbeallowedtofill up the gap by allowing production of the postman especially when no plausible reason for his non-production at the relevant time has been advanced.
24. 18.Insofar as the case-law cited by the learned counsel for the petitioner on this point is concerned, I am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Zar Wali Shah (supra) the matter was remanded back by the Hon'ble Supreme Court of Pakistan in view of the agreement arrived at between the parties. Further, in the said case the learned trial Court failed to collect the evidence despite reasonable grounds were taken by the concerned party. Likewise in the cases of Haji Muhammad Tufail, Mst.Rukhsana Bibi and Iqbal Parekh and four others(supra) the question involved was consequences of non-filing of thelistofthewitnessesbyapartywithinsevendaysofframing ofissuesandnoquestionofadditionalevidencewasinvolvedin the said cases.
25. 19.Insofar as the contempt petition is concerned, I am of the view that a perusal of order dated 14-1-2010 shows that the respondent was not restrained in clear-cut words from raising and demolishing any construction by virtue of order dated 14-1-2010 passed in Civil Miscellaneous No.1-C of 2010 rather only operation of the impugned order dated 16-12-2009 was suspended. Further, the said order was till the next date of hearing viz 3-2-2010 and it was specifically mentioned that in case the same is not specifically extended the same shall not continue. A perusal of the order sheet shows that the same was not extended on any subsequent date. Moreover, the matter of contempt is between the court and the contemner I am of the view that since the respondent is owner of the property in dispute he has the choice to use it according to his whims and no order curtailing his vested rights can be passed.
26. 20.For what has been discussed above, I am of the view that the necessary ingredients for grant of temporary injunction are missing in the case of the appellant. Thus, the learned trial Court has committed no illegality while dismissing the application filed by the appellant/petitioner for grant of temporary injunction. Consequently, this appeal is dismissed.
27. 21.Insofar as the revision is concerned, the appellant/petitioner has made out a case to the extent of exhibition of postal receipt and the notice of Talb-i-Ishhad. Consequently, this petition to that extent is accepted and learned trial Court is directed to exhibit the postal receipt and the notice of Talb-i-Ishhad referred above as secondary evidence. As far as the recording of statement of postman is concerned, the appellant/petitioner has failed to point out any valid reason for his non-production at the relevant time, therefore, this revision petition to that extent is dismissed.
28. 22.Now coming to the contempt petition, after hearing the learned counsel for the parties and going through the documents appended with this petition, I am of the view that no contempt has been committed by the respondent, therefore, the same is dismissed. There is no order as to costs.