SHAHID BILAL HASSAN-J: Succinctly, the respondents/ plaintiffs instituted a suit for possession through pre-emption against the appellants regarding the land measuring 400-Kanals situated at Mauza Hyderabad, Tehsil Mankera, District Bhakkar, contending that the original owner of the suit land was one Muhammad Aslam, who vide registered sale deed dated 03.08.1976 had sold/alienated the suit land in consideration of Rs.8,000/- to the appellants but in order to defeat the valuable right of the respondents/plaintiffs, allegedly the ostensible sale price of Rs.80,000/- was shown. The respondents/plaintiffs claimed their superior right of pre-emption on the basis of being co-sharers in Khata and co-owner of the estate in Mauza. The appellants contested the suit by filing the written statement. Out of the divergent pleadings of the parties, as many as nine(9) issues were framed. The learned trial Court invited evidence of the parties. In oral evidence, Muhammad Yar (deceased) one of the respondents/plaintiffs appeared as P.W.1 and Muhammad Nawaz (P.W.2). In documentary evidence they produced copies of Register Haqdaran Zameen for the year 1968-69 as Ex.P1 to Ex.P4. The appellants, in oral evidence, produced Muhammad Aslam (scriber) as D.W.1, Khan Haq Dad Khan, Advocate Bhakkar (D.W.2), Muhammad Nawaz (D.W.3), Zulfiqar Ali (D.W.4), Muhammad Zaman (General Attorney) as D.W.5 and Bashir Ahmed Sub- Inspector, Finger Print Bureau (D.W.6) and in documentary evidence, the appellants produced Ex.D1 to Ex.D9. On conclusion of trial, the learned trial Court decreed the suit subject to payment of Rs.91,204/- and respondents were directed to deposit the decreed amount after deducting the amount of Zar-e-Panjum already deposited before 10.04.1984, failing which, the suit was required to be dismissed, vide judgment and decree dated 10.02.1982. The appellants being aggrieved preferred an appeal, which was accepted vide judgment and decree dated 13.12.1982 and while setting aside the judgment and decree dated 10.02.1982, the suit of the respondents was dismissed.
The respondents feeling aggrieved preferred regular second appeal No.55/1983 before this Court, which was accepted vide judgment dated 25.01.2000, judgment and decree dated 13.12.1982 passed by the learned appellate Court was set aside with the result that the appeal would be deemed to be pending, to be decided afresh in accordance with law by the learned District Judge, either himself or by an Additional District Judge after its entrustment. In compliance with the said judgment dated 25.01.2000, the learned Addl. District Judge, Bhakkar, heard the appeal, accepted the same and while setting aside the judgment and decree dated 10.02.1982 remanded the case to the learned trial Court for deciding it afresh on issue No.3 and issue No.8-A, vide judgment and decree dated 27.11.2001. Aggrieved of it, the respondents preferred F.A.O.No.25/2001 before this Court, which was allowed and case was remanded to the learned appellate Court for rehearing of the appeal and to decide the same afresh vide judgment dated 18.09.2003. The appellant being dissatisfied filed Civil Petition No.2817-L/2003 before the Apex Court of the country but leave to appeal was refused and petition was dismissed vide order dated 28.02.006. On 08.03.2010, the appellants filed amended appeal before the learned Addl. District Judge, Bhakkar.
The learned appellate Court, after remand, heard the appeal and dismissed the same vide impugned judgment and decree dated 31.10.2011; hence, the instant regular second appeal, challenging the vires of impugned judgment and decree dated 31.10.2011 passed by the learned Addl. District Judge.
2. Heard.
3. On 13.12.2022, learned counsel for the respondents No.3 and 4 raised objection on the competency of the regular second appeal in hand and submitted that this appeal is not competent under Order XLII read with section XLI, Rule 1, Code of Civil Procedure, 1908 because the appellants did not submit the certified copies of the judgment and decree of the learned trial Court while filing the instant appeal. In response to the said objection, the learned counsel for the appellants submitted that the appeal was filed within time, upon which office raised objection as to non-appending of certified copies of the judgment and decree dated 10.02.1982 of the learned trial Court and after removing the office objection, the appeal was re-filed on 15.12.2011 as is evident from the office receipt stamp, affixed on the urgent form and Index Form showing Sr.No.6-1 with connotation 'Judgment/decree of Civil Judge 10.02.82'. Meaning thereby, the mandate of Order XLII read with Order XLI, Rule 1, Code of Civil Procedure, 1908 has been adhered to and followed by the appellant. Therefore, it is ruled that the regular second appeal in hand is maintainable.
4. On merits, it is observed that a specific objection was taken by the present appellants that the suit was not competent as the same was not instituted and verified by all the plaintiffs rather only one Muhammad Nawaz (plaintiff) by affixing thumb impressions on behalf of the other plaintiffs instituted the same and the learned appellate Court while placing reliance on the depositions of the said Muhammad Nawaz as P.W. 2 and Muhammad Yar, plaintiff (P.W.1) discredited the said objection of the present appellants. However, Rule 15 of Order VI, Code of Civil Procedure, 1908 is relevant on the said subject, which provides that:- '15. Verification of pleadings. (1) Save as otherwise provide by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verified upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.'
Therefore, when a specific objection was raised, it was mandatory for the learned trial Court to summon all the plaintiff(s) so as to verify the fact that whether the suit was instituted by them or not? because the said omission is curable in such way and the suit cannot be dismissed mere on this ground. However, such practice has not been undertaken rather, as observed above, mere on the depositions of Muhammad Nawaz (P.W.2) and Muhammad Yar (P.W.1) it was believed that all the plaintiffs thumb marked and signed the plaint.
5. In addition to the above, without conducting an inquiry into the matter, the learned appellate Court observed that it were the present appellants who super imposed the thumb impressions on the already affixed thumb impressions. It is settled principle of law that no one could be held guilty without any proper inquiry, scrutiny and providing him/her fair opportunity to plead and defend his/her case but in the present case, as observed above, without any such inquiry the appellants have been held culprits of tampering with the thumb impressions of the respondents on the plaint and Wakalat Nama. Such practice cannot be stamped by endorsing the same and no one can be held responsible until and unless a thorough inquiry into the matter is carried out.
6. Additionally, the veracity of the documents Ex.D1 to Ex.D3 have been disbelieved and discredited due to the observations with regards to super imposing of the thumb impressions, meaning thereby the same are based on self-conceived and biased approach, without any backing i.e. findings on the basis of thorough inquiry into the matter; therefore, the findings germane to the above said documents cannot be approved.
7. In view of the above, the learned appellate Court while passing the impugned judgment and decree dated 31.10.2011 has failed to exercise vested jurisdiction as per mandate of law and has totally misread evidence on record as well as has committed illegalities; therefore, the impugned judgment and decree cannot be allowed to hold field further. Resultantly, the regular second appeal in hand is allowed, impugned judgment and decree dated 31.10.2011 is set aside and case is remanded to the learned appellate Court, where the appeal will be deemed to be pending, for its decision afresh keeping in view the above said observations, within a period of three months from the date of receipt of certified copy of this judgment and record. The adversaries are directed to appear before the learned appellate Court on 22.12.2023.