JUDGMENT .
Mirza Viqas Rauf, J. This regular :second appeal arises out of judgment and decree dated 1st of June, 2009 handed down by the learned Additional District Judge, Sheikhupura, whereby he proceeded to affirm the judgment and decree dated 12th April, 1986 passed by the learned Senior Civil Judge, Sheikhupura, while ;dismissing Regular First Appeal filed by the appellants.
2. There is a long and chequered history at the back of this appeal, which starts from the institution of suit for pre- emption by the respondents. Suit .was instituted on 23rd September , 1979 whereby respondents, while claiming themselves as nephews of Mst. Khurshid Bibi (respondent No.7) canvassed that she sold out land measuring 94- kanals 7-marlas to Muhammad Hussain (predecessor-in-interest of appellants) without any notice to them whereas they have a superior right of pre-emption. Suit was though contested by the appellants but it was decreed through judgment dated 12th April, 1986. This followed an appeal before the learned Additional District Judge, Sheikhpura which ultimately went before the Hon'ble Supreme Court of Pakistan but finally when it was placed before the learned Additional District Judge, Sheikhupura in pursuance to remand order , it was decided against the appellants vide judgment and decree dated 1st of June, 2009, hence this appeal under Section 100 of the Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC").
3. Syed Kaleem Ahmad Khurshid, Advocate, while questioning the concurrent findings of the Courts below submitted that respondents do not possess any right of pre-emption. He added that the respondents have badly failed to prove that they are collaterals of the vendor . Learned counsel maintained that pedigree table (Exh.P4) was allowed to be produced in evidence subject to cost .but same was not paid. It is argued that in absence of payment of cost, pedigree table cannot be read in evidence. Learned counsel contended that plaint was not accompanying proper Court fee and through a non-speaking order respondents were allowed to make up deficiency in Court fee.
It is emphatically argued that on account of contumacy of the respondents to levy the proper Court fee, their suit should have been dismissed. Learned counsel submitted that suit was hit by the principle of partial pre-emption.
Learned counsel further submitted that a miscellaneous application under Sectio n 476 of the Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C") was though moved by the appellants but the same has remained unattended which renders the impugned judgment and decrees nullity in the eye of law. It is contended with vehemence that there is no legal bar to set at naught the concurrent findings in second appeal when these are suffering with illegality and material irregularity . Reliance is placed on "MUBARAK AHMAD, ETC v. HASSAN MUHAMMAD" (2002 SCJ 172), "ASSIST ANT COMMISSIONER AND LAND ACQUISITION COLLECT OR, BADIN v. Haji ABDUL SHAKOOR and others" (1997 SCMR 919), "RIFF AT IQBAL v. Mst. FATIMA BIBI and others" ( 2007 SCMR 494 ) arid "SHAH NA WAZ AND ANOTHER V . NAWAB KHAN" ( PLD 1976 SC 767 )
4. Conversely , Ms. Kashwar Naheed, Advocate submitted that the respondents are the real nephews of the vendor and they have ably proved their relationship. It is contended that evidence to this effect has gone un-rebutted.
Learned counsel, while addressing the question of non-payment of cost, submitted that failure to pity cost was unintentional and same cannot be made basis for nullifying the effect of document produced in evidence. She added that deficiency in Court fee was duly made as per orders of the Court and there is no contumacy on the part of respondents to this effect. Learned counsel co tended that suit was not of partial pre-emption. She maintained that due to some inadvertence initially area of one of the khasra number was wrongly mentioned, which was rectified through permission of the Court by way of amendment in the plaint. Learned counsel went on to argue that concurrent findings do not suffer with any her material defect justifying interference. In order to supplement contentions, she has relied upon "UMAR BAZ KHAN (DECEASED) through L.Rs. V SYED JEHANZEB, ETC."
(2013 PSC 1319), "PEER BAKHSH, ETC.V NABI BAKHSH, ETC" (2003 CLJ 389) and "SIDDIOUE KHAN AND 2 OTHERS V . ABDUL SHAKUR KHAN AND ANOTHER" (PLD 1984 Supreme Court 289).
5. After having heard learned counsel for the parties at considerable length, I have also perused the record with their able assistance.
6. Before adverting to the questions canvassed hereinabove, it would be advantageous to have a factual background first. Suit is under old law of pre-emption questioning the sale deed attested in favour of Muhammad Hussain on 25 September , 1978. Suit was instituted on 23 September , 1979. Though it was resisted on multiple grounds, including limitation but question of limitation was encapsulated in issue No.3 which was decided in favour of the respondents while holding that suit is well within time. Findings of the courts below to this extent are unexceptionable, which are even not questioned by the learned counsel for the appellants.
7. Suit was decreed by the learned Senior Civil Judge, Sheikhupura vide judgment dated 12th April, 1986. The appeal preferred by the appellants before the learned Additional District Judge, Sheikhupura was accepted vide judgment and decree dated 21s t May, 1991 and suit was dismissed. This prompted the respondents to file R.S.A No.37 of 1991 before this Court. By way of judgment dated 6th November, 1997 while accepting the appeal, the judgment of the learned Additional District Judge was set aside. The application for production of additional evidence filed by the respondents was allowed subject to payment of costs of Rs.1000/- and the case was remanded to the learned Additional District Judge with the direction to record additional evidence of the respondents by way of production of copy of pedigree table in the statement of concerned functionaries, whereafter appellants should be allowed to lead evidence in rebuttal. It was observed that after recording of additional evidence, the appeal shall be decided on its own merits and in accordance with law, within three months. The appellants feeling aggrieved filed C.P.L.A No. 1618-L/1997 before the honourable Supreme Court of Pakistan which was converted into appeal and allowed vide order dated 12th April, 1999 in the following manner: - "Learned counsel for the petitioner states before us that he will have no objection to the remand of the case to the first appellate Court in case the adverse observations having been made by the High Court in the impugned judgment/order dated 6.11.1997 are expunged Learned counsel appearing on behalf of the contenting respondents does not oppose this submission. In this view of the matter , the observations on merits recorded by the. High Court in remanding the matter to the first appellate Court shall not influence the mind of the Court while deciding theth rd controversy . The first appellate Court shall hear and decide the appeal within three months without fail With this observation, by consent, this petition is converted into appeal and allowed "
In post remand proceedings the learned Additional District Judge proceeded to dismiss the appeal vide judgment and decree dated 29 November , 1999. The appellants then filed R.S. No.01 of 2000 which was allowed vide judgment dated 6th May, 2005 and matter was again 1 remanded to the learned lower Appellate Court for its decision afresh in accordance with law. The appeal was ultimately decided by way of judgment dated 1st June, 2009, which is now impugned herein.
8. The controversy now mainly revolves around the question of partial pre-emption, superior right of pre-emption and the Court fee, which is encapsulated in issues No.2, 5 and which were framed as under: -
2. Whether the suit is for partial pre-emption? OPD
5. Whether the plaintiffs have a superior right of pre-emption as against the vendee-defendant? OPD
8. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD
9. In order to establish the superior right of pre-emption Muhammad Shfaique, one of the respondents entered in the witness box as PW-5. As per his statement the plaintif fs (respondents) are collaterals of the vendor who is their real aunt. His statement was further corroborated by Mumtaz Ahmad and Ghulam Nabi, who appeared as PW-1 and PW-2 respectively . To this effect, the statements of witnesses went un-rebutted as they were even not cross- examined by the appellants. Even one of the appellants namely Javed Iqbal, while appearing as DW-2 did not controvert the statements of the respondents witnesses. In addition to oral account there was a copy of register Haqdaran-i-zamin (Exh.P2), which also gives Support to the version of respondents.
10. Attending the contention of learned counsel for the appellants that statements of the witnesses produced by the respondents to establish the relationship is only a hearsay evidence and it is inadmissible in the light of principles laid down in "SHAH NAWAZ AND ANOTHER V. NAWAB KHAN" (PLD 1976 SC 767), it is observed with utmost reverence to the principles laid down in the judgment supra that in the said case, only oral evidence was produced o prove the relationship which was held inadmissible on the touchstone of Section 50 of the Evidence Act, 1872.
The instant case is not merely rested upon oral account but in order to substantiate the question of relationship, the respondents also produced documentary evidence in the shape of copy of register Haqdaran-i-Zarnin (Exh.P2) and pedigree table (Exh.P4), which were even not rebutted by the appellants through any cogent or material evidence.
11. It is apparent from the record that in the first round during the pendency of appeal before the learned Additonal District Judge, the respondents moved an application under order XLI Rule 27 "CPC" seeking production of pedigree table as additional evidence. The application was though declined by the learned Additional District Judge but when the matter came up before this Court in R.S.A No.37 of 1991 the respondents were allowed to produce the pedigree table in evidence in the statement of concerned functionaries, The respondents then produced the pedigree table Exh.P4. Perusal of the same reveals that Khurshid Bibi (vendor) was recorded as real sister of Rasheed Ahmad, father of the respondents (plaintif fs).
12. So far contention of learned counsel for the appellants that the respondents were allowed to produce the pedigree table in evidence subject to cost which was not paid and as such there is no evidentiary value of Exh.P4; suffice to observe that failure to pay cost undoubtedly a fault but it is not of such a magnitude that it could be made basis for disarming a party from a right which has accrued to him through a valid order . Non-payment of cost cannot be made basis for perpetuating a wrong or injustice which is otherwise apparent on the record and that too without affording litigant an opportunity to do the needful. Even otherwise, it is apparent from the record that non- payment of cost was neither intentional nor willful. The appellants since have assailed the judgment dated 6th November , 1997 allowing the respondents to produce pedigree table in evidence before the Hon'ble Supreme Court of Pakistan through C.P.L.A No.1618-L/1997, which was decided on 12th April, 1999. So, there was no occasion for them to deposit the cost immediately after decision of R.S.A No.37 of 1991. It appears that due to some oversight, cost could not be deposited at the time of tendering of pedigree table in evidence, which was produced as such even without any objection from the appellant. Guidance in is respect can be sought from "UMAR BAZ KHAN (DECEASED) through L.Rs. V . SYED JEHANZEB, ETC." (2013 PSC 1319).th
13. Adverting to the question of partial pre-emption, it is observed that appellants have purchased land measuring 94-kanals 7-marlas vide sale deed No.4687 dated 25 September , 1978, which was pre-empted by the respondents through the suit Perusal of plaint reveals that in the headnote respondents have though Mentioned whole land as a subject of pre-emption but in para-2 while giving detail and desc ription of the same, area of one Khasra number was wrongly mentioned though total area was rightly mentione d as 94-kanals 7-marlas. This omission was, however , rectified by the respondents, while moving an application under Order VI Rule 17 "CPC" seeking amendment in the plaint which was allowed vide order dated 20 April, 1986 . Even omission in the statement of Muhammad Shafique (PW-5) to (this effect was corrected by the orders of the learned Trial Court. It card thus surely be held that the suit is not hit by partial pre-emption.
14. Next comes the issue relating to Court fee. Suit was instituted on 23 September , 1979. The respondents assessed the valuation of the suit for the purposes of Court fee at Rs.24500/- on the basis of chart of net profit appended with the plaint. The appellants, however , while submitting written statement objected the valuation of the suit. By way of order dated 25 November , 1979, respondents were directed to make up the deficiency in Court fee after submission of chart of net profits. The respondents affixed the Court fee of Rs.10,125/- as per chart of net profits (Exh.P3) whereafter learned Trial Court through order dated 22 February , 1979 observed that no deficiency Court fee is left. It is though stance of the appellants that chart of net profits was not prepared correctly and the conduct of respondents is contumacious but it can be seen from the record that basis for such assertion is statement of net profits produced by the appellants as Exh. 7 through Muhammad Anwar , Naib Tehsildar who appeared as DW-1. It is an admitted position on the record that Exh.P3 was also prepared by the same revenue officer (i.e. DW-1). As per Exh.P3, net profits were assessed as Rs.881 1 and as such the respondents were required to levy the Court fee on the basis of 15 times of net profit or rent produce of the previous year The respondents thus levied Court fee of Rs.10125/-. It is evident from the record that the learned trial Court has never determined any Court fee. Law is well settled that no party can be made to suffer due to any act of the Court. From the record it cannot be inferred in any stretch of imagination that there is any contu macy on the part of respondents in the matter of Court fee. Plaint cannot be rejected on account of deficiency of Court fee unless plaintif f is given a chance to make up the deficiency . In terms of Exh.D7, net profits of land in question were Rs.10819/- and the Court fee which becomes leviable is Rs.12171/-. While observing the deficiency of Rs.2047/- in the Court fee, learned Additional District Judge directed the respondents to make up the deficiency of Court fee within period of one month. Failure to make up the deficiency contemplates automatic consequences in the form of rejection of plaint and rightly so.
15. So far principles laid down in the cases of "MUBARAK AHMAD, ETC. v. HASSAN MUHAMMAD" (2002 SCJ 172), "ASSIST ANT COMMISSIONER AND LAND ACQUISITION COLLECT OR, BADIN v. Haji ABDUL SHAKOOR and others" (1997 SCMR 919), "RIFF AT IQBAL v. Mst. FATIMA BIBI and others" (2007 SCMR 494), it is observed that there can be no secon d opinion that if the plaintif f in a suit for pre-emption, is required by the Court to make up deficiency in the Court fee and despite availing ample opportunity , he/she fails to do so, his/her plaint merits reject on. In the case at hand, it can be noted without any hint of doubt that the learned Trial Court has never directed the respondents to make up the deficiency in Court fee as no Court fee was even determined. It cannot be said that the respondents remained guilty of contumacy in the matter of Court fee. The principles laid down in the above referred cases are thus not attracted to the matter in issue. Guidance in this respect can be sought from "SIDDIQUE KHAN AND 2 OTHERS V. ABDUL SHAKUR KHAN AND ANOTHE R"
(PLD 1984 Supreme Court 289). The relevant extract from the same is reproduced below: - "Contumacy in the context is used in the general dictionary sense and not as a word of art. It means contempt of lawful authority , obstinacy , or stubbornness. It is not difficult to discover the connection of these attitudes with the subject under discussion. If a plaintif f is allowed time to supply the deficiency in Court-fee under Order VII, rule 11 (c) as a matter of course and obligation (because, the rejection of plaint cannot take place without doing so) then in case he fails to do so, and asks for more time without some justification, it would amount to his being obstinate and stubborn in ignorin g or defying the requirementth th rd th nd and authority of law. The repetition of such a conduct would amount to contumacy . Similar interpretation of this word in Sahara v . Rashid Ahmad (I) by Aftab Hussain, J ., as he then was, is approved ."
16. There is yet another contention of learned counsel that an application under Section 476 "Cr.P.C" was roved by the appellants before the Trial Court which remained unattended and as such without decision the main lis cannot be decided. It i observed that no such application was ever moved. There was only a miscellaneous application under Section 151 "CPC" seeking reconstruction of record relating to an affidavit purportedly submitted by the respondents alongwith application seeking condonation of delay for submission of statement of net profits. It is evident that said application has no material bearing on the merits of the case. The appellants have even never raised this question in the previous round though matter went upto the Hon'ble Supreme Court of Pakistan. It is not an inflexible rule that in all eventualities non-decision of an application would effect the merits of the case. When it is found that the contents of application are superfluous, failure to pass an order on such application shall not cast aspersions on the proceedings of the Court. Reliance in this respect can be place d on "PEER BAKHSH, ETC V.
NABI BAKHSH, ETC" (2003 CLJ 389).
17. There is no cavil to the proposition that exercise of appellate jurisdiction under Section 100 "CPC" cannot be curtailed merely on the ground that findings of the Courts below are concurrent but at the same time, the object and scope of said provision cannot be ignored. A person seeking invocation of jurisdiction in terms of Section 100 of the Code firstly has to establish that there has been a substantial error or defect in procedure and secondly that such a substantial error has resulted in erroneou s or defective decision of the case. In the case of "BASHIR AHMED v.
Mst. TAJA BEGUM and others" (PLD 2010 Supreme Court 906) the Hon'ble Supreme Court of Pakistan has outlined the scope of Section 100 "CPC" in the following manner: "6. A second appeal, however , is much more restricted in its scope compared to a regular first appeal.
Section 100, C.P .C. lays down the limits of jurisdiction of a court in second appeal It stipulates as under:- "100. Second appeal.---(1) Save where otherwise expressly provided in the boy of this Code or by any other law for the time being is force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law or the time being in force, which may possibly have pro aced error or defect in the decision of the case upon the merits."
7. At this point, we may note that rest and second appeals are available (wherever provided by law) as of right. In the present case, a second appeal was not available to the petitioner . He, therefore, invoked the revisional jurisdiction of the High Court under section 115, C.P.C. This jurisdiction is, in material respects, even more restricted than the appellate jurisdiction under section 100, C.P.C., because a judgment can be assailed through a revision petition only where it suffers from a jurisdictional error of the nature set out in clauses (a),(b) and (c) of section 1 15, C.P .C.
8. As opposed to first and second appeals, provided for in sections 96 and 100, respectively of the C.P.C., the provisions of Article 185(3) of the Constitution do not confer any right on an unsuccessful litigant, to prefer an appeal to this Court. He must seek leave to appeal, and in order to be granted such leave, a petitioner under Article 185(3) ibid, is obliged t show something at least equivalent to if not more stringent than w at is required by section 100 or 115, C.P.C. It is this requirement which lays down the minimum standard and sets the bar for granting I have to appeal under Article 185(3) ibid. In the context of the present case, we would like to examine the criteria for determining whet ever leave to appeal should or should not be granted. This necess arily will have to be determined in the light of the facts and circumstances of this petition and, therefore, exhaustive rules of universal application may neither be appropriate nor possible.
9. Guidance in laying down criteria for grant of leave to appeal, can, however , be taken from the Provisions of section 96 and section 100 of the Code of Civil Procedure. One rule which can be safely laid down is that in order to be granted leave to appeal under Article 185 (3) of the Constitution, at the very least, the petitioner should satisfy the requirements of section 100, C.P.C. In the present case, it is quite obvious to us that the decisions of the learned Courts below are neither contrary to law nor an usage having the force of law. Likewise, we have not been shown that the impugned judgments have omitted to decide "some material issue of law or usage having the force of law." We may note at this stage, that not all instances of a Court's failure to decide an issue will suffer for the purpose of allowing an appeal. It is only a failure to decide material issues which will enable an aggrieved party to invoke the jurisdiction of an appellate Court.
The question of material , that is, whether or not an issue of a material nature, will depend upon whether the ultimate decision of the Court of first appeal would have been different, if the omitted issued had been determined by it. Thus, in order to succeed in second appeal on ground (b) of subsection (I) of section 100, C.P.C., an appellant would have to show that the court of first appeal would have reached a different conclusion, had it not failed to decide the issue of law or usage specified in ground (b) ibid.
10. We now take up for consideration ground (c) given in sub-section (1) of section 100, C.P.C. This provision requires an appeal, to show firstly that there has been a substantial error or defect in procedure and secondly that such a substantial error could have resulted in an erroneous or defective decision of the case. Illustrations to highlight such substantial errors are no hard to find. However , no such substantial error arises from the judgments assailed before us."
The above principles were also reiterated in the case of "MUHAMMAD FEROZE and others v. MUHAMMAD JAMAA T ALI" ( 2006 SCMR 1304 ).
18. After having an overview of the princi ples referred hereinabove, I am of the considered opinion that concurrent findings of the Courts below are bereft of any substantial error or procedural defect, materially effecting such findings justifying interference. The findings arrived by both the Courts below are neither perverse nor arbitrary .
Consequently the instant second appeal, being without any merits fails and is dismissed with no order as to costs.
19. Needless to observe that the respondents should deposit the cost of Rs.1000/- as per dictates of judgment dated 6th November , 1997 within fortnight accordingly .