CH. MUHAMMAD MASOOD JAHANGIR, J.---This judgment will dispose of R.S.As. Nos.108 and 109 of 2010 which are between the same parties and the common questions of law and facts are involved therein.
2. The facts germane for the disposal of both the appeals are that the respondents had purchased the property vide sale deeds Nos.1187 and 1192 dated 3-4-2002 and the present appellant filed two independent suits (Nos.260 and 11.9 of 11-5-2002) for possession through pre-emption before the learned trial court which were resisted by the respondents and the same were dismissed vide independent judgments and decrees dated 29-10-2009. Feeling dissatisfied, the appellant filed 2 separate appeals bearing No,141/2009 and 140/2009 before the learned lower appellate court, which were also dismissed vide judgment and decree dated 11-3-2010, hence the instant appeals before this court.
3. Learned counsel for the appellant has argued that the learned trial court recorded the evidence of the parties in one case and the same was copied in verbatim over the other file and while doing so the learned trial court committed gross illegality and travelled beyond the mandatory provisions of law; that due to said lapse on the part of learned Trial Court, the trial of the suit had not been conducted in accordance with law and such illegality is of such a nature which cannot be cured; that the learned trial court did not follow the mandatory provisions contained in Order XVIII, C.P.C. And as such the proceedings of the learned trial court are liable to be vitiated as those were conducted in sheer derogation of above said provision of law; that non-appearance of the appellant as his own witness was not fatal as his attorney appeared before the learned trial court as P.W.1 and proved the factum of performance of requisite demands. He lastly mooted that the impugned judgments and decrees passed by both the learned courts below are nullity in the eyes of law and the cases are required to be remanded back to the learned trial court for fresh decision after de novo trial. Relied upon the cases reported as (PLD 2014 Supreme Court 39) and (PLD 2003 Supreme Court 184).
4. Conversely, learned counsel for the respondents has argued that the appellant had filed two suits before the learned trial court on 11-5-2002, who concluded the same after consuming a period of more than 7 years; that during the course of recording of evidence, the appellant/plaintiff did not raise any objection regarding the mode of recording the evidence before the learned trial court; that the appellant/plaintiff did not appear himself before the learned trial court as his own witness, but in his place Shahid Inayat P.W.3 was produced as attorney and the non-appearance of the pre-emptor was declared to be fatal by both the learned courts below; that the appellant/plaintiff now to cover up the said lacuna for the first time has raised the objection; that the appellant/plaintiff during the course of proceedings before the learned lower appellate court did not raise any such question and cannot set up a new ground in his second appeal; that the provision of Order XVIII, Rule 14, C.P.C. Are directory in nature and not of mandatory to be followed in stricto sensu. He has relied upon the cases reported as (2012 CLC 841), (2014 CLC 112), (2008 YLR 326), (1990 MLD 588), (2013 CLC 1013), (2007 CLC 1887) and (PLD 2013 Lahore 30) in support of his contentions and prayed for the dismissal of the instant appeal.
5. Arguments heard. Record perused.
6. The pivotal question only stressed by both the parties is that whether the learned trial court committed gross illegality by not following the provision of law and recorded the evidence in one case and copied the same in verbatim over the other case. The grouse of the appellant is only to this extent, otherwise, on merit it is an admitted fact that the appellant did not appear himself before the learned trial court and elected to be represented through his attorney Shahid Inayat P.W.3. Special power of attorney Exh.P3 had been executed on 9-12-2005, which shows that Shahid Inayat P.W.3 was not attorney of the appellant at the time when the requisite Talb-e-Muwathibat had allegedly been performed on 26-4-2002. A perusal of special power of attorney (Exh.P3) further indicates that P.W.3 was not even authorized as a witness on behalf of pre-emptor with regard to performance of Talb-e-Mowathibat.
7. There is no doubt in the mind of this court that a pre-emptor could be represented through an attorney, but the powers should have been delegated prior to the performance of requisite demands so that he could perform the same and then depose in the court about the performance thereof on behalf of the attorney on the strength of his power of attorney. The best evidence with regard to performance of Talb-e-Muwathibat was the person who had made such demands, but in the present case, the such piece of evidence in spite of availability was withheld for the best reasons known to the appellant and under Article 129(g) of the Qanun-e-Shahadat Order, 1984, both the learned courts below have rightly drawn inference against the appellant, who himself had damaged his case by not appearing before the learned trial court as his own witness.
8. A perusal of plaint further reveals that the appellant/plaintiff did not assert in his plaint that at the time of performance of Talb-eMuwathibat and Talb-e-Ishhad, the said attorney Shahid Inayat P.W.3 was also present in the first Majlis and he was also accompanying the appellant when he got scribed the notice Talb-e-Ishhad and dispatched the same to the respondents/vendees. So the statement of Shahid Inayat P.W.3 as attorney is not helpful to the appellant/plaintiff, who failed to prove the performance of requisite Talb-e-Muwathibat and Talb-e-Ishhad and both the learned courts below have rightly decided issue No,2 in favour of the appellant/plaintiff. After seeking guidance from the dictum laid down in (2012 SCMR 1106), (2007 SCMR 957), (2012 MLD 242), (2012 CLC 651) and (2011 YLR 1488), I do not find any illegality or jurisdictional defect committed by both the learned courts below in arriving at the aforesaid findings.
9. The only grouse of the appellant/plaintiff is that the learned trial court in derogation of the mandatory provision of law had recorded the evidence in one file and copied the same in verbatim over the other file has some substance, who seeks that to cure the said illegality the matter should be remanded to the trial court for de novo trial, but in the present case history of the case goes against the appellant/plaintiff. It is an admitted fact that the appellant/plaintiff himself filed two independent suits before the learned trial court on 11-5-2002 which remained pending before the learned trial court fora period of more than seven years. During the said long period in the course of proceedings, the appellant/plaintiff had neither raised any question nor had made any prayer for recording the evidence of the parties in both the suits independently. The perusal of plaints in both the suits reveals that the alleged performance of requisite Talb-e-Muwathibat regarding the two sale transactions had been made at the same time, venue and before the similar witnesses as well. The second demand was also allegedly performed in the similar manner. The contents of both the plaints are also identical rather the stance took by the plaintiff/appellant in one plaint appears to have been copied in verbatim over the other plaint. The plaintiff/appellant did not agitate any such objection in his memorandum of appeal filed before the learned lower appellate court. The objection to this extent for the first time has been raised by the appellant/plaintiff in the instant second appeal. The learned counsel for the respondents has argued that the appellant/plaintiff cannot raise a new objection in the instant second appeal. The dictum laid down in the cases reported as Fateh Muhammad through L.Rs, and others v. Fida Hussain Shah through L.Rs, (2007 CLC 1885), Noor and others v. Mst. Sattan through Legal Representatives and others (PLD 2013 Lahore 30) and Mst. Sardar Begum and 5 others v. Muhammad Ilyas and another (2013 CLC 1013) lends support to the contention raised by learned counsel for the respondents that the plea, which, at the relevant time, was not raised before both the learned courts below cannot be raised in the second appeal.
10. The contention of learned counsel for the appellant/plaintiff that in the recent judgment reported as Muhammad Asghar v. Hussain Ahmad and others (PLD 2014 Supreme Court 89) the august Supreme Court of Pakistan has declared that the provisions of Order XVIII C.P.C. Are of mandatory nature, thus the learned trial court while recording the evidence in one case and copying the same in verbatim over the other case traveled beyond the mandatory provision of law, is without substance. With utmost care and due respect the judgment of august Supreme Court of Pakistan has minutely been perused and it is found to have been rendered in the context of Order XVIII, Rule 17, C.P.C., whereas the proposition in the present case relates to Order XVIII Rule 14 which does not entail any penal clause. For ready reference both the said provisions are reproduced hereunder:-- "14.-(1) Where the Judge is unable to make a memorandum as required by this Order, he shall cause the reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court.
' Every memorandum so made shall form part of the record."
"17. The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit."
' So the contention of learned counsel for the respondent that the said provision is directory in nature appeals to this court. In arriving at such view, I am fortified by the judgment reported as Bahadar Ali v. Syed Ghulam Shabir Gilani (1990 MLD 588) wherein, this court observed as under:--
18. As indicated in Nand Lal and another v. Pooran and another AIR 1956 Rajasthan 9, the learned Judge was examining the case in which the learned trial Judge had completely defied the clear mandate of the law in an extremely brazen manner occasioning serious doubt about the record of the case.
19. The ratio emerging from the aforesaid principles is:-
(i) that the provisions of the procedural law are intended to facilitate and not to throttle the administration of justice. The calls of substantial justice must prevail over the logic on the basis of technicalities.
(ii) that the object of Rules 8 and 14 of Order XVIII of the Code of Civil Procedure is to ensure the accuracy of the record. The preparation of correct record is the foundation of dispensation of justice as finally the judgment is to be rendered on the basis of this record;
(iii) that the trial Court shall prepare the record in accordance with these rules in order to obviate any allegations or counter allegations in preparation of the incorrect record;
(iv) that the duty cast upon the Courts is for the benefit of the litigant public. If there is any non- compliance or neglect in the performance of the duty that is subject to waiver if the parties do not choose to make objection at the time of neglect or non-: compliance;
(v) that non-compliance or neglect of duty in the context of afore-noted rules in absence of allegations of inaccurate preparation of record or prejudice is irregularity and is not illegality.
20. Applying these principles to this case I have no difficulty in coming to the conclusion that neither the appellant raised any objection in respect of this non-compliance before the trial Court nor raised any objection with respect to any accuracy in the preparation of the record occasioning prejudice or injustice to him. Therefore, I am clear in my mind that the objection, rooted in technicalities must fail and is accordingly repelled."
11. The said view has further been affirmed by this court in another case reported as Muhammad Ramzan v. Muhammad Jahangir and another (2012 CLC 844), wherein, it was held that 'unnecessary technicalities should not be allowed to deter the. Due process of law on trifling grounds, particularly where no prejudice is likely to be caused to any litigant, meaning thereby, the procedural environment must be made conducive to facilitate the flow of the stream of justice.'
The identical controversy was also clinched in many other cases by this court as well as the august Supreme Court of Pakistan. Reference can be made on the cases reported as Muhammad Sharif v.
Muhammad Yousaf (2008 MLD 307) and Khushi Muhammad v. Muhammad Yousaf (2008 YLR 362).
After placing reliance upon the case reported as Salehon Muhammad and another v. Allah Yar (1989 SCMR 540) this court is of the firm view that the plea raised by the appellant/plaintiff that evidence recorded in one case copied in verbatim over the other file in the peculiar facts and circumstances of the instant case cannot be declared fatal and the appellant/plaintiff could have objected the mode of recording of evidence before the learned trial court, if he was prejudiced in any manner, but he having failed to do so, at this stage before the third forum such an objection cannot be considered. Even today, the learned counsel for the appellant has not been able to point out that how B the appellant was prejudiced by the alleged mode adopted by the learned trial court in recording the evidence of the parties and that how the evidence of one case has damaged the stance of the appellant in the other case and how the same were different from each other. It is not the case of the appellant that there were different sets of witnesses in both the cases and separate witnesses were to be examined, whose mind set would vary from each other.
There could be substance in the argument of learned counsel for the appellant that the evidence of a witness recorded in one case was copied in verbatim in the other case of a different witness on the similar issue. Even otherwise, the appellant, has been non-suited on his own omissions and commissions made during the proceedings of the cases, but he is not aggrieved of any procedural defect on the part of the learned trial court in losing the eases on merits. Hence, after the elapse of about 12 years, I do not find any good ground to throw the parties in another round of litigation in a suit for preemption, which is a feeble right.
12. The learned counsel for the appellant has remained unable to urge any good grounds provided under section 100, C.P.C. To warrant interference by this court in the instant appeals. The findings rendered by both the learned courts below against the appellant have not been found by this court to be either excessive or offensive. In these facts and circumstances, no occasion has cropped out to vary the impugned judgments and decrees, which are maintained and both these appeals are dismissed.