C.M. No.3172 of 2013/BWP ' SHUJAAT ALI KHAN, J.---Through this application under Order VII, Rule 11 read with section 151, C.P.C.
The applicant/respondent No.1 has prayed for dismissal of titled revision petition being barred by limitation.
2. Learned counsel for the applicant/ respondent submits that the titled revision petition was filed beyond 17 days of prescribed period of limitation, hence, same is not proceedable rather deserves dismissal on this score alone; that the law favours the vigilant and not the indolent and that non filing of appeal/revision within prescribed period, certain rights accrue in favour of opponent party thus defaulting party is bound to face the consequences of inaction on its part; that as the provisions of Limitation Act, 1908, are not applicable to the revision petition as limitation for the same has been provided in the parent statute i.e. C.P.C.; that the time consumed in getting certified copies of the impugned judgment and decree could not be excluded from the period of limitation while giving benefit of section 12 of the Act. In support of his contentions, learned counsel has relied upon the cases reported as Abdul Rehman v. Haji Ghazan Khan (2007 SCMR 1491), City District Government Lahore through DCO Lahore v. Mian Muhammad Saeed Amin (2006 SCMR 676), Haji Ahmed and others v. Noor Muhammad (2004 SCMR 1630), Muhammad lqbal v. Noor Elahi and 5 others (2010 CLC 1493), Allah Bakhsh v. Allah Bakhsh (2010 CLC 951), Pakistan Telecommunication Mobile Ltd. v. Furqan Hayat Khan and others (2008 CLC 628), Rehana Kausar and 7 others v. Faqir Muhammad and another 2004 CLC 1202 and Sikandar Khan and 6 others v. Muhammad Nawaz and 2 others (2004 YLR 865).
3. Conversely, learned counsel appearing on behalf of the respondent/ revision-petitioner states that though the provisions of section 5 as well as section 12 of the Act are not explicitly applicable to the revision petition filed under section 115, C.P.C., however, the time consumed in getting certified copies is to be excluded while calculating the period of limitation; that after provision of certified copies of impugned judgment and decree the petitioner filed captioned revision within time; that when a verdict of a court below is before this Court, this Court enjoys unfettered powers under section 115(1), C.P.C. To adjudge legal status of the same and question of limitation cannot be pressed into service to oust revisional jurisdiction of this Court and that when a substantive question of law is involved, revision petition cannot be dismissed on the basis of technicalities. In support of his contentions, learned counsel has relied upon the cases reported as Province of Punjab through Collector Toba Tek Singh and others v. Muhammad Farooq and others (2012 SCMR 1942), Province of Punjab through Collector and others v. Muhammad Farooq and others (PLD 2010 SC 582) and Fateh Muhammad through L.Rs. And others v. Bakhshau and 14 others (2012 CLC 1172).
4. After hearing learned counsel for the parties and having gone through the case-law cited at the bar, I have observed that the impugned judgment and decree was passed on 21-5-2012 whereas application for supply of certified copy whereof was submitted on 31-5-2012 which . Was prepared on 20-6-2012 and was delivered to the petitioner on 7-9-2012. The titled revision petition was filed on 27-9-2012. The applicant/respondent has filed the application, under discussion, on the ground that titled revision petition was time barred as the provisions of sections 4, 9 and 18 of the Act are not applicable in such matters rather the period of limitation in said matters is to be governed under section 115, C.P.C. In this backdrop, the legal preposition which boils down for determination by this Court is as to whether the time consumed in obtaining certified copies of the decision of the forums below can be excluded while calculating the period of limitation for a revision petition.
There is no denying the fact that the provisions of the Limitation Act, 1908 are not applicable to the revision petitions as the period of limitation has been provided in the parent statute i.e. C.P.C., however, I agree with learned counsel for the respondent/revision-petitioner that while computing the period of limitation time consumed in getting certified copies of the impugned judgment and decree should be excluded and after exclusion thereof, if the revision petition is found to be within time the same cannot be dismissed on the sole point of limitation.
5. As discussed above, the period consumed by the Copying Agency while preparing certified copy and delivering the same to the party concerned, is to be excluded from the period of limitation, thus, the instant application has no merits. If any case-law is required a reference can safely be made to the cases reported as Hafeez Ahmad and others v. Civil Judge, Lahore and others (PLD 2012 SC 400), Mst. Banori v. Jilani through L.Rs. And others (PLD 2010 SC 1186) and Muhammad Hassan v. Mst. Ulfat and others (2012 CLC 903).
6. It is interesting to note over here that the applicant/respondent No.1 has filed the instant application pressing into service the provisions of Order VII, Rule 11, C.P.C. According to which a plaint of a suit, appeal or revision arising out of civil suit can out-rightly be rejected on the following grounds:--
(a) where it does not disclose a cause of action:
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so:
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so:
(d) where the suit appears from the statement in the plaint to be barred by any law.
As this Court has already held in the preceding paragraphs that' the period consumed for getting certified copy of a judgment/order to file a revision petition is to be excluded, the titled revision petition cannot be dismissed while pressing into c service clause (d) quoted above.
7. Insofar as the raising of the objection by the office that the revision petition filed by the petitioner was time-barred, is concerned, suffice it to note that while commuting the period of limitation, the Office reckoned the same from the date of preparation of the copy instead of delivery thereof to the petitioner. The question as to whether the period of limitation is to be reckoned from the date of preparation or otherwise came under discussion before the apex Court of the country in the case reported as Ahmad Nawaz and others v. Muhammad Ayub (PLD 1988 SC 258) wherein the apex Court of the country while dismissing a Civil Petition for Special Leave to Appeal against judgment of this Court inter alia observed as under:-- "6. Before parting with this Judgment, it needs to be observed that the question of exclusion/ condonation regarding the period spent between the date when the copy is ready for delivery and the date of obtaining delivery, has been the subject matter of considerable controversy since 1960, when the case of Gul Muhammad v. Allah Ditta (PLD 1960 (W:P) Lahore 443) was decided by the Lahore High Court. The litigant public experiences uncertainty and suffers considerable expense and inconvenience on account of existing state of law in this behalf A legislative intervention may have to be considered. One of the various possibilities is that an appropriate explanation in section 12 of the Limitation Act, 1908, may be added. According to one suggestion, it can be to the effect that the period spent from the date of the application for copy upto the duly intimated date of delivery of the same be treated as time requisite for obtaining copy. The office shall bring these observations to the notice of the concerned authority." (emphasis provided)
' A perusal of existing section 12 of the Act shows that pursuant to the suggestion in the afore- quoted judgment subsection (5) was added through Act No.XIII of 1991 which reads as under:-- "(5) For the purposes of subsections (2), (3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery"
' Though the legislature while following the direction given by the Hon'ble Supreme Court of Pakistan has inserted the afore-quoted subsection (5) under section 12 of the Act but the Office is commuting the period of limitation while following the old practice of reckoning the period of limitation from the date of preparation of the certified copy without ascertaining that as to whether the same was the date intimated to the petitioner for delivery of the same. Moreover, the applicant has not made it clear in his application that though the respondent/revision petitioner was intimated about the date of delivery as 20-6-2012 but he instead of receiving the same on the said date waited till 7-9-2012. Further, the period from the submission of application for certified copy of the impugned judgment till the delivery of the same was excluded in the cases reported as Muhammad Yousaf and others v. Khan Bahadur (deceased) through L.Rs. (1992 SCMR 2334) and Zila Council Sheikhupura v. Dost Muhammad and another (1993 MLD 775). In the case of Muhammad Yousaf and others (supra) while dealing with the preposition regarding dismissal of a revision petition on the point of limitation has inter alia observed as under:-- "It is by now well settled that the exercise of revisional jurisdiction by the High Court is a matter exclusively between the High Court and the subordinate courts, albeit the parties to be litigation have a right to bring to their notice the jurisdiction/legal errors as envisaged in section 115 of C.P.C.
Itself. No period of limitation is, consequently, prescribed therefor under the law. No doubt, there are authorities on the points that the persons applying for exercise of revisional jurisdiction before the High Court have to submit their application within a certain time but that is not sacrosanct and the High Court can, in certain circumstances, ignore or either may condone the delay or exercise their jurisdiction suo motu."
8. As far as plea of learned counsel for the applicant that Office Objection was over-ruled with the observation that question of limitation would be decided on judicial side but this Court prior to deciding the said question proceeded to admit the captioned petition to regular hearing, is concerned, suffice it to note that though the question of limitation was to be decided by this Court while hearing the titled revision petition but the same does not justify rejection/dismissal of the captioned petition under Order VII, Rule 11, C.P.C. Even otherwise, this Court, after coming to know that there is substantial question of law for determination, has admitted the titled petition for regular hearing, thus, it is not justifiable to dismiss the same under Order VII, Rule 11, C.P.C.
9. In view of the discussion made in the foregoing paragraphs, I have no doubt in my mind to hold that the captioned revision petition was filed within time and same cannot be rejected/dismissed summarily being barred by law of limitation. Thus, the instant application is dismissed, being devoid of any force.
MAIN CASE.
10. By virtue of instant petition, the petitioner has assailed validity of judgment and decree dated 21-5-2012 passed by the learned Additional District Judge, Sadiqabad (respondent No.2).
11. Succinct facts, as gathered from the instant petition, are that respondent No.1 filed suit for possession through preemption with the averments that he, being Shaft-e-Sharik, Shafi-e-Khaleet and Shafi-eJaar, had preferential right to purchase the land sold by Bashir Ahmad to the petitioner/defendant which was contested by the petitioner/defendant. After framing requisite Issues and recording evidence of the parties, the learned Civil Judge, Sadiqabad, District Rahimyarkhan proceeded to dismiss the same vide judgment and decree dated 30-4-2011.
Aggrieved by the said judgment and decree, respondent No.1 filed an appeal before the learned Additional District Judge, Sadiqabad, which was accepted through impugned judgment and decree and the suit filed by respondent No.1 was decreed; hence the instant revision petition.
12. Learned counsel for the petitioner, while opening his arguments, submits that though respondent No.1 failed to establish performance of requisite Talbs, in particular Talb-e-Mawathibat, respondent No.2 illegally proceeded to accept his appeal and decree the suit filed by him; that it is of common knowledge, that informer in a suit for pre-emption enjoys role of a star witness but the said witness having not been produced by respondent No.1, his suit could not be decreed by respondent No.2; that to prove Talb-e-Ishhad, scribe of the notice has pivotal role but in the instant matter respondent No.1 did not bother to produce that witness too; that in view of glaring contradictions amongst statements of different P.Ws. It was not open for the appellate Court to reverse the well-reasoned findings of the trial Court; that though the appellate Court observed in its judgment that production of informer was necessary but while dispensing with his nonappearance and decreeing the suit totally detracked from the settled principles on the subject; that the case set up by respondent No.1 in the plaint on the one hand and in the acclaimed notice of Talb-e-Ishhad does not coincide with each other rather they are at polls apart, therefore, in view of glaring inconsistencies between the stances of respondent No.1 at different times, his suit could not be decreed by the learned Appellate Court and that the impugned judgment and decree passed by respondent No.2 being violative of the law laid down in the cases reported as Allah Ditta through L.Rs and others v. Muhammad Anar (2013 SCMR 866), Muhammad Hafeez Khan and another v. Shatab Khan through L.Rs. (2011 YLR 39), Muhammad Yousaf v. Muhammad Rafique and others (PLD 2006 Lah. 39) and Water and Power Development Authority v. Ghulam Shabbir (1998 MLD 1592) is not sustainable.
13. On the other hand, learned counsel appearing on behalf of respondent No.1, while defending the impugned judgment and decree, submits that it is bounden duty of plaintiff in a pre-emption suit to establish performance of Talbs and to discharge said onus the plaintiff is bound to produce two witnesses in whose presence the informer told the plaintiff about sale of the property and in turn he showed his intention in clear cut words to exercise his right of preemption; that when two witnesses have supported version of the plaintiff regarding Talb-e-Muwathibat, non-production of informer is inconsequential; that there is no denying the fact that in absence of any other witness of Talb-e- Muwathibat the informer assumes the role of star witness but when there are other independent witnesses his statement becomes irrelevant; that the appellate Court has discussed all pros and cons of the case while decreeing the suit of respondent No.1; that minor discrepancies in evidence of a party cannot be used to knock it out as law favours adjudication of matters on merits instead of technicalities; that on material points regarding time, place and date of performance of Talb-e- Muwathibat all the P.Ws. Remained consistent despite the fact that they were put to lengthy cross- examination; that discrepancies pointed out by learned counsel for the petitioner do not justify interference in the impugned judgment and decree by this Court and that too in its revisional jurisdiction of this Court; that when the petitioner admitted his signatures on the registered A.D.
Sent by respondent No.1 the performance of Talb-eIshhad stands established. In support of his contentions, learned counsel has relied upon the cases reported as Ghulam Abbas and another v.
Manzoor Ahmad and another (2008 SCMR 1366), Muhammad Shaft through L.Rs. And another v.
Aamir Hameed and others (2013 CLC 131), Muhammad Asam Shah v. Amanullah Khan (2006 YLR 1194), Israr Ahmad v. Ghafoor Khan (2004 YLR 655) and Sikandar Khan and 6 others v. Muhammad Nawaz and 2 others (2004 YLR 865).
14. Learned counsel for the petitioner, while exercising his right of rebuttal, submits that glaring discrepancies amongst the statements of P.Ws. Could not be considered as minor as they had direct bearing on the outcome of the suit and that when the performance of Talb-eMuwathibat is not established on record, proof of Talb-e-Ishhad is inconsequential.
15. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.
16. According to section 13 of the Punjab Pre-emption Act, 1991, the plaintiff in a suit for possession through pre-emption is bound to prove performance of requisite Talbs viz Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khasumat. Insofar as the case in hand is concerned, respondent No.1, while filing the suit; instead of specifying the place contented with the averment that on 2-5-2007 at 5:00 p.m. Muhammad Tariq, Arif and Munir Ahmad were sitting in Mauza Chandrami (Basti Mian Sahib) while he was coming from Sadiqabad where Munir Ahmad called him and told about the sale of the suit property against consideration of Rs.2,00,000 whereupon he expressed his intention to exercise his right of pre-emption, This fact is sufficient to show that respondent No.1 did not specify the exact place where the informer as well as the witnesses were sitting. The august Supreme Court of Pakistan in the case of Allah Ditta through L.Rs. And others (Supra) has taken a very strict view regarding minor contradiction qua the place where Talb-e-Muwathibat was performed. While dealing with the consequences of contradictions amongst the statements of the P.Ws. Regarding the performance of Talb-eMuwathibat has laid law to the following effect:-- "2. We have heard learned counsel for the parties and find vital discrepancy in the statements of P. W. 1, P. W. 2 and P. W. 3 particularly, P. W. I and P. W.
2. P. W. 2 stated that the disclosure of the sale of suit land was made to them while the plaintiff was sitting inside the shop of Aziz, whereas the informer who is the son of the pre-emptor, P. W. 3 Muhammad Rafique, has contradicted the above and in unequivocal, clear and unambiguous terms stated that they were sitting outside the shop. This was a material discrepancy but the learned Appellate Court had failed to notice the same and it has also been overlooked by the learned Revisional Court."
If we consider the statements of the P.Ws. On the touchstone of the afore-quoted judgment it comes to lime light that they did not depose in line with the averments contained in the plaint, thus, the same was fatal for the case of the respondent/plaintiff which fact escaped notice of the appellate Court.
17. During examination-in-chief the plaintiff tried to improve his case while stating that at that time the informer as well as the witnesses of Talb-e-Muwathibat were sitting outside Ghulam Muhammad Karyana Store. As the said fact was not mentioned in the plaint, evidence adduced on the said point is irrelevant and same cannot be read in evidence. It is well entrenched by now that a party cannot be allowed to adduce evidence beyond its pleadings. When a specific plea has not been asserted same cannot be allowed to be made up during the course of evidence. Reliance in this regard is placed on the cases reported as Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 SC 695) and Karam Elahi through L.Rs. v. Muhammad Ashraf and others (2013 YLR 2347).
18. In the backdrop of the above narrated facts, the statement of Munir Ahmad had become more crucial to adjudge exact venue of performance of Talb-eMuwathibat. Since respondent No.1 has not produced the informer in support of his plea, inference goes against him. Reliance in this regard can be placed to the cases reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. And others (PLD 2007 SC 302) and All Bahadur v. Muhammad Ishaq (2013 YLR 2555).
19. Now coming to the performance of Talb-e-Ishhad, I have noted that respondent No.1 has mainly relied upon the fact that as the petitioner admitted his signatures on registered A.D. The performance of Talb-eIshhad was established. In this regard, I am of the humble view that though the said fact goes against the petitioner but respondent No.1 could not take any premium therefrom rather he had to stand on his own legs as he himself alleged that he sent the requisite notice to the petitioner which was duly received by him. He was bound to produce its scribe to establish that the notice was in fact written as the said fact became very vital when the petitioner took very clear cut stance that the envelope received by him was empty. Further, there is glaring contradiction amongst the statements of different P.Ws. Regarding the preparation of original notice and its copies. According to P.W.1, he also got photocopies of the notice whereas P.W.2 has shown his inability to tell that how many copies were got prepared and which was put in the envelope rather he stated that no copy of the notice was got prepared before him. He further stated that he was not aware about the post office from where the said notice was posted by the pre-emptor. The assertion of said P.W. That after briefing the Advocate they went to their homes, is very material despite the fact that he tried to make up the said deficiency by stating in the subsequent sentence that he remained in the chamber of the Advocate till dispatch of said notice.
In this state of affairs, the inconsistencies and material discrepancies are floating on the surface of the record which badly affect the case of respondent No.1, thus, respondent No.2 was not justified to decree the suit. If any case-law is required, reliance in this regard can safely be made to the case reported as Allah Ditta through L.Rs (supra) wherein while dealing with somewhat similar situation the apex Court of the country has observed as under:-- "As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D. W. 1 has admitted the receipt of the notice and, therefore, the respondent plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove talb-i-Ishhad was on the plaintiff' and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff preemptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below."
20. As far as plea 'of learned counsel for the petitioner that minor discrepancies cannot be used to knock out the plaintiff of a pre-emption suit, is concerned, I do not find myself in agreement with learned counsel for the petitioner for the reason that in ordinary suits such discrepancies can be ignored whereas in a suit for pre-emption according to the dictum laid down by the august Supreme Court of Pakistan in the afore-referred case of Allah Ditta through L.Rs. (supra) even minor inconsistency is fatal for plaintiff in a pre-emption suit, thus, argument of the learned counsel on this point is hereby spurned.
21. Now coming to the case-law cited by learned counsel for the respondents, I am of the view that the same is of no help to the respondents for the reason that according to the latest case-law laid down the case of Ali Bahadur (supra) when the informer as well as the scribe has not been produced in evidence same are fatal in a pre-emption suit.
22. For what has been discussed above, I have no hesitation in my mind to hold that the plaintiff himself failed to prove performance of Talb-e-Muwathibat as he withheld the best evidence in the shape of informer and there are material inconsistencies amongst the statements of witnesses regarding exact place of Talb-eMuwathibat. Consequently, instant revision petition is accepted, impugned judgment and degree passed by the learned Appellate court is set aside as a result that of the learned trial Court shall hold the field. No order as to costs.