1. MUHAMMAD AFZAL ZULLAH, J -This appeal is directed against judgment and decree of the Lahore High Court dated 16-10-1978 whereby a first appeal filed by the respondent/plaintiff in a suit for pre-emption, was allowed, the judgment of the trial Court dismissing the suit on ground of waiver was set aside and the suit was decreed with usual conditions in matters of pre-emption.
2. Respondent/pre-emptor is the son of Hussain Bakhsh, one of the vendors, other vendors are his close relations within first degree. He wanted to pre-empt the sale in question made in favour of the appellants on 11-7-1973 by his father and other relations, on the ground of relationship.
3. Amongst other pleas, the appellants/defendants, in their written statement, set up waiver on the assertion that prior to the transaction of sale, the respondent had waived his right to pre-empt and thus was estopped from bringing the suit. The learned trial Court relying on the depositions of Ghulam Rasool (D.W. 1) one of the defendants and their witnesses, Sher Muhammad and Muhammad Anees (D.Ws. 2 and 3) came to the conclusion that the respondent had not only by his conduct but also through a positive representation made by him prior to the transaction of sale, bad lost the right to pre-empt the sale. On appeal by the respondent, the learned Judges of the High Court on reconsideration of merits of the plea came to the conclusion that the case set up in the defendant's written statement was totally different from that sought to be established at the trial, therefore, they could not be succeeded in non-suiting the respondent. Similarly, it was also concluded that the depositions of the defendants' witnesses (D. Ws. 2, 3 and 4) being directly in conflict with the case set up in the written statement, could not be relied upon. Accordingly, the trial Court judgment on a question of fact was set aside in first appeal. The appellants (defendants) then filed this direct appeal under Article 185 of the Constitution.
4. According to the learned counsel for the appellants, there was no contra--diction between the plea taken in the written statement and the case sought to be established through evidence.
5. According to him, the conclusions reached by the learned Judges of the High Court which have been noted above were the result of misreading of the written statement and in that context also of the depositions of the witnesses. Learned counsel for the respondent, on the other hand, in reply, has submitted that it was not a case of misreading, instead, the learned Judges having correctly read and understood the pleadings and the evidence, in the course of appreciation of the material, found the evidence and the pleadings having contradicted each other; therefore, it being purely a case of controversy relating to appreciation of evidence, the judgment of the High Court does not merit interference. Both the learned counsel agreed, that it depends upon the circumstances of each case as to whether the conduct and/or representation made by a pre-emptor amounted waiver or not. The controversy in this case, therefore, is confined to whether the decision of the High Court is based on misreading or it is a case merely of appreciation of evidence.
6. The assumption, on account of which the High 'Court came to the conclusions earlier noted, are found in the following observations "It is pertinent to note here that the kind of waiver tried to be introduced in evidence has not been specifically raised in the pleadings, and the one pleaded by them in their written statement has not been proved. The version in respect of the alleged waiver mentioned in _the written statement is indicative of a time much before the completion of the sale, which, according to Ghulam Rasool, D.
7. W. 4, is a month before registration of the document, that is, when the respondents had allegedly come in possession. There is no evidence on record showing that before striking the bargain, as alleged in the written statement, the plaintiff-appellant had ever assured the vendees that he had no mind to file a pre-emption suit. In the light of the specific averments in the written statement, the version of Sher Muhammad, D. W. 2 and Muhammad Anees D. W. 3 appears to be a mere improvement, and, therefore, being in conflict with the case set up in the written statement, cannot be relied upon. The learned trial Court was, thus, not justified in placing reliance on the statements of the said two witnesses. In the circumstances the plaintiff-appellant was not bound to lead evidence in rebuttal against one which did not exists on record. It was never the case of the respondent in the written statement that the appellant was estopped from exercising his right on the ground of his subsequent acquiescence in the sale."
8. The averment made in the written statement which has been read by the High Court as if the waiver pleaded therein related to an incident much before the completion of the sale (that is, a month earlier) reads as follows: - Ghulam Rasool, one of the defendants when appearing as his own witness deposed about three incidents when according to him respondent made the relevant representation through conduct and spoken words; one a month prior to the completion of sale; the other, was couple of days prior to registration; and, the third, on the day of registration; but sometime before the documents were presented for registration. The assertion made in the written statement is that the plaintiff had waived the right through positive representations made "prior to the sale". It is not disputed that the word "sale" here is used for the completion of sale through the act of registration. If the representation was prior to registration, even if it was made -on the day of the registration, but before the time of registration, it would be covered by the expression, The use of these words in the written statement could not have been read as confining the defendants' plea to particular point of time and that too a month earlier to the time of registration. With respect, it has to be observed, it was an obvious mis--reading of the written statement, therefore, the assumption, that it (the written statement) contradicted the case set up at the trial in the evidence, could not have been made. It was not a case of mere appreciation of evidence and pleadings by putting them in juxtaposition to each other.
9. Learned counsel for the respondent also attempted to persuade us to bold that the controversy merely related to appreciation of evidence by contending that the learned Judges of the High Court independently of any other consideration found the statements of the appellants' witnesses as containing different versions; and also, that the deposition of each witness related to a different occasion and thus there was no corroboration regarding each occasion. In our view, after carefully going through the evidence, with respect to the High Court, it is pointed out that there has been misreading on this point as well. The defendant/Ghulam Rasool had stated in his deposition, which undoubtedly is evidence in the case that the representation was made by the plaintiff on different occasions. Defendants' witnesses namely, Sher Muhammad and Muhammad Anees supported the defendants' statement in respect of separate incidents. Thus the former's statement stood corroborated by his two witnesses. And, as the two witnesses had also deposed in connec--tion with different incidents, therefore, their version were not different regarding same incidents.
10. At this stage, we would also like to observe that the observation in the impugned judgment to the effect that there is no evidence on record showing that before striking the bargain nearly a month prior to the completion of the sale as alleged in the written statement, the plaintiff had ever indicated that he had no mind to file a pre-emption suit, is not borne out from the record, because Ghulam Rasool, defendant, in his deposition as D. W.
4. Did make reference to such a representation vide nearly a month prior to the completion of the sale. It is a different matter whether this statement should have been believed or not, but the fact remains that evidence existed on record in this behalf. It could not be treated as a case of no evidence on that point.
11. Perhaps the deposition of Ghulam Rasool, D. W. Being that of a party, was wrongly excluded from being counted as an item of evidence; which approach, again with respect, it is pointed out, is not correct. Even if it was a deposition made by a party as his -own witness at the trial, it had to be weighed and given effect, as evidence.
12. In the light of the foregoing discussion, we hold that the judgment of the High Court in so far as it relates to the setting aside of the finding of fact on question of waiver is entirely based on misreading of the pleadings and the evidence. We accordingly, while setting aside the same, allow this appeal with costs.