The relevant facts for the decision of this revision petition are that Muhammad Ibrahim and 5 others purchased land measuring 94 kanals, situated in Basti Dad, Tehsil Shujabad, District Multan.
The sale was effected through registered sale-deed dated 30-12-1978, for a total consideration of Rs.80,000. The petitioners filed the suit claiming superior right of pre-emption on account of relationship with the vendors. The suit was originally filed against Ibrahim and 4 others. The defendants made an application on 18-5-1980, for dismissal of the suit as the petitioners have failed to implead Muhammad Yaqoob, one of the vendors. The petitioners promptly made an application under Order I Rule 10 C.P.C. For impleading the said Muhammad Yaqoob as a party to the suit. It was submitted that the said Muhammad Yaqoob could not be impleaded as defendant in the original suit because his name was not mentioned in the certified copy of the sale-deed issued to the plaintiffs before filing of the suit. Both the applications were heard together. The trial Court proceeded to accept the application moved by the petitioners and allowed them to implead Muhammad Yaqoob as defendant while petition moved by the original defendants was rejected.
The orders are dated 8th of November, 1980.
2. The respondents assailed this order through a revision petition in the Court of District Judge, Multan, who sent for the record and proceeded to dismiss the revision petition vide order dated 18- 1-1981. The defendants thereafter submitted a written statement. The trial Court proceeded to frame following issues:- (1)Whether the valuation of the suit for the purpose of court-feeand jurisdiction was wrong?
(2)Whether the plaintiffs are estopped to bring this suit?
(3)Whether the suit is barred by limitation?
(4)Whether the suit is for partial pre-emption?
(5)Whether the description of the suit property is incorrect?
(6)Whether the suit is bad for non-joinder of necessary party?
(7)Whether the sale is hit by M L R No.115?
(8)Whether the plaintiffs have got superior right?
(9)Whether the sale price of Rs.80,000 was fixed in fact and paid in good faith?
(10)What was the market value of the suit land at the time of sale?
(11)Whether the defendants had made any improvements upon the suit land, if so, to what extent and amount?
(12)Relief."
3. The parties led their respective evidence. The trial Court heard the arguments and proceeded to dismiss the suit vide judgment and decree dated 7th of March, 1985. The respondents feeling aggrieved by the judgment and decree of the trial Court decided to impugn the same through an appeal before the District Judge. The appeal was entrusted to Additional District Judge, Multan, who reversed the finding on issues Nos.2 and 3 and as a result thereof accepted the appeal vide judgment and decree dated 5th of March. 198'.
4.This way the petitioners were constrained to file the present revision petition. Which was admitted to regular hearing vide order dated 19-9-1987 and notices were issued to the respondents, who have entered appearance and contested the petition.
5. 1 have heard the learned counsel for the petitioners as well as learned counsel for the respondents. The learned counsel for the petitioners in support of the petition has raised following points:- (a)Firstly, that the District Judge illegally re-opened the question of limitation, which stood resolved by the order of DistrictJudge dated 18-1-1981. It was added that Muhammad Yaqoob could not be impleaded as defendant in the original plaint on account of fact that the petitioners were supplied an incorrect certified copy of the sale-deed, therefore, they cannot be penalised. In this behalf, the learned counsel has referred to the cases of Arshad Mahmood v. Muhammad Rafique and 4 others PLD 1982 Lah.660 and Noor Muhammad and 3 others v. Jahangir Ali and 8 others PLD 1987 Lah.473. He has further referred to case of Mian Irshad Ali v. Government of Pakistan through Secretary, Ministry of Rehabilitation,Islamabad and 13 others PLD 1975 Lah.i to argue that nobody should suffer for an act of Court; and west.
(b)Secondly, that the findings on issue No.2 are against evidence on record. It is argued that the petitioner No appeared as P.W.3 and he was not cross-examined on this point. Therefore, it will be deemed that his statement was accepted. In this behalf he has placed reliance on the cases of Syed Iqbal Hussain v. Mst.Sarwari Begum PLD 1967 Lah.1138, Qasim and others v. The State PLD 1967 Kar.233, Mst. Zar Jan v. Mst. Najmun Nisa and others PLD 1969 Pesh.118 and Ghulam Rasul and 4 others v. Muhammad Hanif 1980 CLC 1611; 6.It is further added that mere silence is of no effect and will not amount to waiver or estoppel.
There must be conscious giving up of the right. In this behalf he placed reliance on the cases of Qutab-ud-Din v. Muhammad Siddique and others PLD 1969 Lah.418, Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133, Ghulam Muhammad v. Muhammad Bakhsh etc. 1980 CLC 2063 and Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159.
7. On the other hand, the learned counsel for the respondents r has raised a preliminary objection as to the competency of the revision. The objection precisely is that since the petitioners have not placed on the paper book the application for amendment and impleading of Muhammad Yaqoob, reply thereto, order passed on this application, original plaint and written statement, application for disposal of suit, reply thereto and order passed thereon, therefore, there is non--compliance with the proviso to section 115, C.P.C. And as a result thereof the petition is liable to be rejected. The learned counsel for the respondents in this behalf has referred to cases of Ghulam Akhtar v. Sardar and 5 others PLD 1987 Lah.613, Sultan Ahmad Awan v. Ghulam Muhammad Awan and another PLD 1987 Lah.663 and Aziz and another v. Yousaf PLD 1988 Lah.625.
8.On merits it was argued that the findings on issue No. 3 recorded by the lower appellate Court are correct and it is added that since the revision was dismissed in limine by District Judge, therefore, that order is not available and cannot foreclose the finding on issue No.3. It was argued in reply to the second point that the statement of DWs proved presence of the petitioners at the time of the sale-deed. Therefore, the issue No.2 was also correctly decided by the lower appellate Court.
9. I have given my anxious considerations to the arguments on the both sides and gone through the precedent cases as well as record. Now I proceed to deal with the two points raised by the learned counsel for the petitioners in support of the petition with reference to the arguments of the learned counsel for the respondents.
10.The arguments of the learned counsel for the petitioners on issue No.3 were that the matter has already been decided by Ch. Muhammad Naseem, the then District Judge, Multan, vide his judgment dated 18-1-1981, whereby the learned District Judge dismissed the revision of the respondents directed against the order passed on the application for amendment of the plaint and addition of Muhammad Yaqoob as a defendant. The learned District Judge has held as under:- "I have called the original file which is before me. I have heard preliminary arguments addressed by the learned counsel for the petitioners who mainly canvassed before me that the suit had become barred by time and there was no justification to grant the permission to the plaintiffs to implead Muhammad Yaqoob in the list of the defendants. It would be an error to agree with him. A perusal of the certified copy of sale-deed issued to the plaintiffs of the suit forming part of the original file has made out that the name of Muhammad Yaqoob vendee stands eclipsed there from. It means that the plaintiffs were not at fault at the time of bringing of the suit."
11.This order was not challenged by the respondents any further, therefore, attained finality. The argument that this order is of no 1A legal consequence because the revision petition of the respondents was dismissed in limine is misconceived. The learned counsel for the respondents perhaps has in his mind case of Mian Akhtar Islam v. Ch.Zulfiqar Ali and another PLD 1965 Lah.394.
The principle is not sound if I can say with utmost and profound respect to my learned brother A.R.Sheikh, J. Author of the judgment. A party raising a plea in petition or reply thereto runs a risk of adverse decision. If it opts to have a finding before the decision of the main suit then Court normally cannot avoid adjudication of such questions specially when the points raised are purely legal e.g. Limitation, proper court-fee, competency of suit, jurisdiction etc. Once such questions, which were directly in issue are decided by trial Court and decision unsuccessfully assailed by the aggrieved party in revision, the same would become barred by res judicata. When all the ingredients of principle of res judicata are present then how the same questions B could be allowed to re-argued and re-urged in the appeal against final judgment? The proposition would have been otherwise if such questions were left open for determination along with the main suit or the findings recorded are tentative in nature.
12.Now in the present case the matter directly and substantially in issue was whether suit against Muhammad Yaqoob was barred by limitation or not. The question was answered in negative. The defendants naturally felt aggrieved and proceeded to assail this order in revision. But the same was dismissed in limine by the District Judge. This was a simple and pure question of law requiring no evidence and was decided on merits of the plea. Now the question on the same material or facts and law cannot be once again allowed to be re-argued and re-urged. This, in my humble view, is in clear violation of provisions of section 11, C.P.C. And against all settled principles of law. .
13. The findings were not tentative in nature, recorded by competent Court, on a matter in issue and after hearing party to be affected, therefore, fairly and squarely covered by mischief of res judicata.
The issue was foreclosed by the judgment of District Judge dated 18-1-1981. The same should have not been allowed to be raised by lower appellate Court once again. Even otherwise there is nothing wrong with the order. The learned District Judge has practically stated the principle of law upheld by this Court of Arshad Mahmood and Noor Muhammad without referring to these judgments. This issue was dealt at length by my learned brotherAbdul Shakurul Salam, as his Lordship was. In the case of Arshad Mahmood. The relevant portion reads as under:- "The judgment of the learned Division Bench in Abdus Sattar Khan and others v. Hafiz MuhammadBakhsh and another. Although the case involved description of property and not of person but principle is discernible from what is laid down at p.324(1) of the report which reads as follows: In the case in hand the material on record quite clearly gives out that the parties had entered into an agreement about the entire land situate in village Pallu Shah. There was, therefore,no mistake about identity of the property. The wrong description crept into the plaint not because of a mistake of any kind on the part of the plaintiff-applicant but because of a mistake on the part of a public functionary which cannot be allowed. Rather, it is the duty of every Court in such situation to undo the wrong as otherwise it may open a floodgate of another kind of corruption at the hands of delinquent public officials. The case of the applicant is thus on a far better footing than the cases referred to above.The ratio decided of the case is that mistakes of copying branchcannot be allowed to affect the decision on merit. The principle is sound, if I can say so with profound respect.
The other side of the coin that the defendant is brought to Courtafter limitation without any mistake on his part is met by the consideration that the plaintiff too was without mistake and cannot be kept out of Court either. Both are at par. Mistake of third party should affect none. A few cases which mayhave bearing on the question may also be referred to. One is Moti and another v.
Sayed Ahmad Shafi and others (1)(1896)29 PR 80 wherein a suit for pre-emption was filed against the vendeeMadrassa Tibbia in Delhi, through its Manager.When it was objected that the society was unregistered and could not be sued through its Manager, the District Judge returnedthe plaint for the names of the members of the society to be entered, which was accordingly done. It was contended on behalf of the added members that as they were brought or record after the expiry of one year the suit was barred by time. The contention was accepted and the suit dismissed. On appeal it was held by a learned Division Bench that the Manager was not the sole proprietor of the Madrassa Tibbia and that inasmuch as that when the plaintiffs instituted their suit they intended to sue the vendee, the Madrassa Tibbia as a body and not merely its Manager. The society was sued though the names of its members were not specified. Those members were, however, comprised in the designation Madrassa Tibbia, and the subsequent specification of their names was either a correction of a miss-description or an amplification of an imperfect and insufficient description.
Therefore, there was no question of limitation. In a certificated appeal in the case of Mura Mohiudeen v. V.Q.A. Mohomed and others AIR 1955 Mad.294, a learned Division Bench after referring to numerous cases from India as well as in England came to the conclusion that "if, however, imperfectly and incorrectly a party is designated in a plaint the correction of the error is not addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of intention of the party and if the Court is able to discover the person or persons intended to sue or to be sued a mere mis description of such a party can always be corrected provided the mistake was bona fide vide Order 1, rule 10, C.P.C. Such an amendment does not involve the addition of a party so as to attract section 22(1), Limitation Act." The case was followed by a learned Division Bench in Ismail Haji Suleman v. Messrs Hansa Line and anther PLD 1961 Dacca 693. The same principle has been enunciated by another learned D_B. In Muhammad Ali H.Allah Rakhya v- Piarali H.Lada Rhai and another PLD 1968 Kar.345. So the whole thing is intention and bona fide action. Both stand satisfied in the case in hand as would appear from the statement of facts earlier made. Therefore, in all the circumstances of the case, I come to the conclusion that the learned District Judge fell in error in not applying his mind to all the aspects of the case and omitting to consider the principle of law laid down by a learned Division Bench of the High Court. Therefore, the impugned order is without lawful authority and it is so declared."
While the relevant portion of the judgment in case of Noor Muhammad reads as under:- "8. It is difficult to accept as a general proposition that the power available to the Court under Order VI, rule 17, C.P-C. To allow amendment of plaint should not be exercised in a case where the amendment would take away from the defendant the right of defence under the law of limitation.
In this connection references may be made to the following observations made by the Privy Council in Charan Das v. Amir Khan AIR 1921 PC 50:- "That there was full power to make the amendment cannot be disputed, and although such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right, which has accrued to him by lapse of time yet there are cases where such considerations are outweighed by the special circumstances of the case."
10.In the present case respondents Nos. l to 3 were misled by the certified copy of the registered sale-deed (Exh.P.6) throughwhich the suit land was purchased by the vendees inasmuchas Killa No.Ll of Square No.84 was not mentioned in the said copy and it was on the basis of the description of the land given in the aforementioned copy of the sale-deed that the suit was instituted by them.
The omission of KillaNo.Ll of Square No.84 in the plaint was, therefore, not t intentional and as such could be considered only accidental and through inadvertence. In the circumstances of the case, the trial Court had rightly exercised its discretion in allowingamendment of the plaint. The finding of the trial Court under issue No. 5 that the suit instituted by respondents Nos.] to 3 was not for partial pre-emption was, therefore, correct and not open to question. There is yet another aspect of this matter which is quall-important. The issue No.3 seems to have been framed on the basis of preliminary objection No.3 raised in the written statement by the respondents Nos. l to 5. The respondent No. 6 filed a separate statement and raised number of preliminary objections including preliminary objection No.5, which was to the effect that since he was impleaded after the period of limitation, therefore, suit against him was barred by limitation. Since he could not claim an issue on the basis of this objection, in view of the findings of the learned District Judge. Multan, recorded in the revision filed by the defendants while there was no merit in the plea of the other defendants on the point of limitation, therefore. It seems that the defendants are now trying to capitalised this confusion created by themselves. There is no meritin the plea of the defendants Nos.l to 5 as to the limitation.
14. 1, therefore, respectfully following the judgment in Arshad Mahmood's case--hold that the lower appellate Court has wrongly decided issue No.3 rather illegally, allowed--this question to be raised after the finding on the same had become final.
15. Now I take up the arguments on issue No.2. The submission of the learned counsel was that there was no strong and cogent evidence to answer the issue in favour of the defendants. It is added that waiver anti estoppel are to be established as a fact. In this behalf reliance is placed on the case of Ghulam Muhammad and another v. Muhammad Younis 1986 CLC 500. The learned counsel has referred to the statements of DWI and DW3 to show that they contradict each other on all the material facts while DW2 did not participate in the bargain and statement of DW5 is not relevant- DW9 is Muhammad Ibrahim, respondent himself. DWI Siraj Ahmad has stated that Ibrahim paid a sum of Rs.58,000 while the other party paid Rs.12,000 or 17,000. In the cross- examination he has stated that the sale-deed was witnessed by Karim Bakhsh and one other person- As against this DW2 has stated that he is marginal witness of sale-deed RXh.D.l. And a sum of Rs.5,000 was paid to the vendor while the payment of Rs.75.n(l0 was admitted by the vendor. He stated that he was not present at the time of the deal. He simply said that petitioners were present at the time of registration of the sale-deed but did not sign or thumb-mark on the documents. D.W.3 has stated that he is witness of agreement to sell EXh.D.2.A sum of Rs.75,000 was paid to the vendor but he was not aware as to what was contributed by each vendee. The vendor was accompanied by two or three persons. One of them was his son by the name of Fateh Khan. As against is statedRs.75,000 was paid at the time of the registration. The vendor was accompanied by the petitioners (both sons) and passed on the amount to the petitioner after receiving the same. He admitted that the petitioners neither signed the agreement to sell nor the sale-deed. It is not clean the evidence as to which of the petitioners the amount was given by their father. This silence is fatal and shakes the credit. Now if the statements of the --said defence witnesses are compared then it becomes clear that they had contradicted one another on all material facts and were rightly disbelieved by the trial Court and wrongly relied by the lower appellate court, which has failedto take into consideration the glaring discrepancies and contradictions in their statements. The learned counsel for the petitioners has rightly referred to following cases:- (i)Barkat Ali v. Khurshid Bibi and others 1,988 SCMR 1550. The relevant para4reads as under: "The second point raised by the learned counsel was not pressed before the learned appeal Court.
Be that as it may, the reliance is only on oral evidence which we have not been able to treat enough to create bar of waiver against the respondents."
(ii)Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159. The relevant para. Reads as under: - "6. On the question of waiver, evidence had been led on behalf of the vendees appellants to the effect that the pre--emptor had introduced the vendees to the vendors, that he had facilitated the bargain and that he had been present at the time of the sale. The pre-emptor had denied this oral evidence. All the Courts below held that mere presence, even if accepted. Could not amount to waiver Waiver is a conscious relinquishment or surrender of right. In Fateh Chand and others v.
Sirpa Singh and others 48 PR 1912-13 1C 561, where the pre-emptors had been present and had helped in the sale negotiations and one of them had assisted in demarcating the land sold out of a large field, it was held that their conduct, which had actively induced in the vendees mind the belief that they were perfectly agreeable to the purchase by the vendees and did not intend to enforce their rights, amounted to waiver. But mere presence at the time of the sale has not been considered sufficient to amount to waiver (see Mahmud Bakhsh v.Hassan Bakhsh and others 7 P R 1912). On the same principle, in Baqri v. Salehon PLD 1972 SC 133, mere presence or even unsuccessfully bidding at an auction had not been considered to amount 'to waver' and it had been observed that "until a sale actually takes pace, no person can assume to have a right of pre- emption which is not a right in property although it is a vested statutory right". In Shah Bodhrai v.Sundar Singh and another 100 PR 1885, where the plaintiff, a professional petition-writer, had made a rough draft of the deed of sale for the defendant, it was held that there was no waiver. In the present case the oral assertion as to the pre-emptors participation in the sale transaction had been denied by him. The question, therefore, whether the evidence produced by the parties showed a conduct on the part of the pre-emptor amounting to waiver is one of fact and as such the concurrent finding by all the three Courts below will call for no interference."
(iii)Muhammad Irshad Khan v. Muhammad Khan Zafar Hussain and another 1981 CLC 203. I may remark here that both parties have referred to this judgment.The relevant portion of the judgment in this case reads as under:- "11.What emerges from the foregoing discussion is that if a person consents to a sale and takes active part in its completion, he is estopped from filing a suit for pre-emption in respect of such sale." It is settled law now that the evidence to uphold the plea of estoppel or waiver should be of the highest order. The evidence led by the 0 defendants hardly meets the standard laid down by the superior Courts.
16. The learned counsel for the respondents has referred to the statement of Haji Allah Diya as P.W.1, to argue that he has not denied the presence of the petitioners at the time of the sale agreement and the sale-deed. The learned counsel ignored the fact that P.W.1 has appeared in affirmative and not in rebuttal. Moreover, the witness has categorically stated that he and his sons are living separately. The respondents did not challenge his statement in cross- examination. This is not all. The petitioner No.l appeared as P.W.3. He in the beginning of his examination-in-chief stated that Haji Allah Diya, vendor is his father while Fateh Muhammad co- plaintiff is his real brother. Thereafter hp categoricaly stated that he and his brother were not present either at the time of the agreement or registration of the sale-deed. This statement was not subjected to cross--examination. It is now settled law that failure to cross-examine a witness on material point will amount to acceptance of his statement. E I need not refer to all the cases relied by the learned counsel forl the petitioners. Suffice here to refer following portion of the judgment in the case of Syed Iqbal Hussain v. Mst. Sarwari Begum, which reads as under: "It is significant to point out that this witness was not cross --examined by the counsel for the landlady which means that the statement of this witness was not being taken exception to and was rather accepted. It is laid down in Karnidan Sarda and another v _ Sailaja Kanta Mitra and another AIR 1940 Pat. 683, per Wort, J. At page 685 that failure to cross-examine a witness means that his statement is being accepted."
This statement of the petitioner No.l PW.3 having not been challenged in the cross-examination.
Therefore, now the respondent cannot maintain and contend that the petitioners were present at the time of the sale. The lower appellate Court has failed to take into consideration) this material portion of evidence. The learned counsel for the respondents has referred to cases of Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 and Muhammad Irshad Khan v. Muhammad Khan Zafar Hussain and another 1981 CLC 203 but the same do not help him in any manner. In this view of the matter, the finding of the lower appellate Court on issue No.2 cannot be maintained. Now I take up the preliminary objection as to the competency of the revision petition. Suffice it to say that all the relevant documents were on record and at no time the learned counsel for the parties have to refer to any document beyond the paper book. This is sufficient compliance, therefore, case Aziz and another relied by the learned counsel for the respondents is of no avail to him. Even otherwise at this stage, the objection is meaningless.
17. This Court has vast powers 'under section 115, C.P.C, and in) a proper case can even exercise these powers suo motu. In this G behalf reference can be made to case of Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678. The relevant portion of the judgment reads as under:- "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and Secondly, the our may make such order in the case as it thinks fit." It is also useful to refer to the case of Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139. The scope of revisionel jurisdiction is clear from the following portion of this judgment: - True, exercise of jurisdiction by High Court is discretionary but that does not mean that a revision is not a right but only a privilege. ..Indeed where the conditions for the exercise of revisional jurisdiction are satisfied the High Court should itself interfere.
18. The result is that I accept this revision, set aside the judgment and decree of the lower appellate Court dated 5th of March, 1987 H and restore that of the trial Court dated 7th of March, 1985, with costs throughout.