' MUHAMMAD GHAZANFAR KHAN, J.--- Through the instant appeal under section 96, C.P.C, the appellant Mohammad Idrees has called in question the judgment and decree dated 19.5.2011 rendered by learned Civil Judge, Kulachi camp D.I.Khan, whereby his suit was dismissed.
2. The brief facts giving rise to the instant appeal are that the petitioner filed a suit against respondents for possession through pre-emption of Shop No,C/4962 situated in Bhatia Bazar, D.I.Khan, detailed in the heading of the plaint.
3.The respondents contested the suit by submitting their written statement. The learned trial Court framed issues from the pleadings of the parties. The parties produced their respective evidence as they wished to adduce and after hearing the arguments of learned counsel for the parties, the learned Civil Judge, Kulachi camp at D.I.Khan dismissed the suit vide judgment and decree dated 19.5.2011, hence the instant appeal by petitioner.
4.The learned counsel for appellant argued that under section 34 of NWFP Pre-emption Act, 1987, the provisions of Code of Civil Procedure, 1908 and law of evidence shall mutatis mutandis apply to the proceedings under this Act, so, the application for summoning postman as a witness was wrongly turned down by the Court below. He further argued that the learned trial Court has dealt with the application in a cursory manner and has not decided the same prior to deciding the whole - case which was incumbent upon it. He also referred to Order XVI, Rule 1, C.P.C. and Order XLI, Rule 27, C.P.C. and contended that under Order XLI, Rule 27, C.P.C., this Court is empowered to record additional evidence if so required. Similarly, under Order XVI, Rule 1, C.P.C., the trial Court is also empowered to summon any witness whose name does not figure in the list of witnesses, so, at the first instance, he solicited for remand of the case to the trial Court for deciding the application for production of postman and then deciding the case on merits. He maintained that even otherwise, the appellant has proved his case through cogent and reliable evidence particularly regarding tables and non-production of postman is not fatal to non-suit the appellant. He argued that the learned trial Court has passed the judgment without going through the record and decree based on flimsy grounds cannot hold the field under the law.
5.On the other hand, learned counsel for respondents strongly supported the judgment of trial Court and argued that the judgment and decree of trial Court is well reasoned, self contained and has been passed after proper scrutiny of the evidence available on the record and the application for production of postman was rightly dismissed by the trial Court as even acceptance of application would not have advanced the cause of appellant.
6.I have heard the arguments of learned counsel for the parties and have gone through the record.
7.Before discussing merits of the case, let the point raised by learned counsel for the appellant for decision of application for production of additional evidence be taken first. There is no cavil with the proposition that the provisions of C.P.C. have been made mutatis mutandis applicable to the NWFP Pre-emption Act, 1987, however, the Court cannot apply ever provision without application of judicial mind. In the present case, it is evident from the record that the registered notice was not received by respondents themselves and it has allegedly been received by one Arif, who is neither the defendant nor lawful attorney of the defendants. The summoning of witness has been solicited in the application who has effected the service through registered A/D upon the respondents. As stated above, the record clearly and loudly depicts that the registered envelope was never received by the defendants, so, it will be a futile exercise to indulge in a controversy which is neither beneficial to the appellant nor can in any way affect merits of the case. In 2013 SCM R 721 it was held that service of notice even on one of the vendees should not be presumed to be service on both the vendees. Similar view has been taken in 2013 SCM R 866 by holding that:- "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."
In the present case, summoning of postman would also not serve any purpose as admittedly the notice Talb-e-Ishhad was received by a person who is alien to the litigation. In 2007 SCM R 1105 it was held that:- "The requirement of "sending a notice in writing" is followed by a rider i,e, "under registered cover acknowledgment due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted."
' Similar view has been taken by their lordships in 2013 SCM R 721. So, the application was rightly turned down by the trial Court.
8. Now coming to the merits of the case, suffice it to say that when I D performance of Talb-e- Ishhad is not proved in the light of above observations, there is no need to discuss further merits of the case. The findings of learned trial Court are based on proper appreciation of evidence and law on the subject and need no interference.
9. For the reasons mentioned above, the instant appeal being bereft of any merit and substance is hereby dismissed.