The appellants through this Regular Second Appeal have impugned the judgments and decrees dated 14-5-1985, 22-6-1986 and 30-9-1987 of the trial Court and the lower appellate Court respectively.
2. The brief background of the matter is that the respondents purchased land measuring 43 Kanals 11 Marlas situated in Mauza Khand, Tehsil and District Lahore through the sale deed Exh. P4 dated 18-12-1974 from Ilam Din. The respondent filed the suit to pre-empt the sale. She claimed superior right on the ground that she was co-owner in the Khata and collateral of the vendor. The appellants contested the suit. The trial Court accordingly framed the following issues:-- (1)Whether this suit is bad for partial pre-emption? OPD.
(2) Whether the plaintiff is stopped by her conduct and deeds to file this suit? OPD
(3) Whether any unnecessary party has been impleaded in this case? If so, with what effect? OPD (4)Whether the suit is properly valued for the purpose of court-fee and jurisdiction? OPP (5)Whether the plaintiff has a superior right of pre-emption as against the vendees? OPP (6)Whether the ostensible sale price of Rs. 20,000 was fixed in good faith or actually paid? OPD
(7) If issue No. 6 is replied in the negative what was the market value of the property is question at the time of sale? OPP (8)Relief.
The plaintiff admitted the price vide statement dated 16-12-1980, therefore, issues Nos. 6 and 7 became redundant while issue No. 3 lost significance because the names of defendants Nos. 5(a) and 5(b) were deleted, while the material issue as to superior right was decided in favour of the plaintiff and as a result whereof tile suit was decreed. The appellants filed an appeal before the District Judge, Lahore, who noticed that issue No.4 had not been decided by the trial Court, therefore, the appeal was kept pending. The trial Court was directed to decide the issue in terms of Order XLI, Rule 25, C.P.C. The trial Court recorded the evidence on this issue and vide judgment dated 22-6-1986 decided it. Thereafter the appeal of the appellant was heard. The same was dismissed being time-barred as well as on merits. Now the appellants have challenged the judgments and decrees of the Courts below through this appeal, which was admitted to hearing and notice was issued to the respondent, who has entered appearance and contested the appeal.
3. The learned counsel for the appellants in support of the appeal has argued that the superior right was claimed being collaterals and co-sharer in Khata. The respondent gave up the claim on the ground of relationship, therefore, the superior right of the respondent depends on decision of point whether the vendor and the plaintiff owned the Khata jointly? The learned counsel in this behalf has argued that P.W.S clearly admitted that the parties i.e. The plaintiff and the vendor have partitioned their Khata and they were owners in possession of their respective shares. In this behalf he has referred, also, to the sale deed Exh.P4 as well to the statement of the respondent P.W.4 where she admitted that the land was earlier mortgaged by the vendor in favour of the appellants.
It is maintained that the Courts below have failed to take this material evidence into account and this resulted in wrong decision. The second argument is that the documents Exhs.Pl and P6 are liable to be excluded from consideration because the same were made part of the evidence n violation of Order XIII, Rule 4, C.P.C. In this behalf it is explained that the endorsement as required under rule 4 has not been made. This defect renders he documents inadmissible in evidence. In this behalf the learned counsel has offered to Murid Ahmad v. Faiz Muhammad 1982 CLC 1949 and Naik Muhammad v. Bagh Ali PLD 1987 Lahore 208.
4. On the other hand, the learned counsel for the respondent has raised preliminary objection to the effect that the appeal before the District Judge vas time-barred and the same has been dismissed both on merits as well as on he ground of limitation. In this behalf it is submitted that the appellants applied for copy of the judgment and decree of the trial Court dated 14-5-1985 in 16-5- 1985. The copy was prepared on 20-5-1985 and received by the appellant on 28-5-1985 while the appeal was filed on 17-7-1985. Therefore, the same was clearly barred by limitation. It is added that even the appeal was not accompanied by an application under section 5 of the Limitation Act. In this behalf he has referred to the judgment reported as Patraco Ltd. v. Deputy commissioner and Assistant Custodian of Enemy Property 1981 CLC 1433, Zhadim Hussain Khan v. State PLD 1982 SC (AJ&K) 13 and Province of East Pakistan v. Abdul Hamid 1970 SCMR 558. On merits it is argued that according to Exhs.P.5 and 6, copies of the Jamabandi for the year 1970-71 the Khata is jointly owned by the vendor and the plaintiff. It is added that the statement made by P.W.5 is of no significance in view of these documents. It is ,added that P.W:5 is illiterate and he could not comprehend the cross-examination as is clear from the fact that in just the earlier lines he has shown His ignorance as to the partition through Tehsildar or Civil Court and in the cross-examination-in-chief he has stated that the disputed Khata has been divided in many places. It is submitted that it was a case of concurrent findings by the 'courts below and the appellants have failed to make out a case for interference n second appeal. It is argued that the documents were properly exhibited without any objection, therefore, it is too late in the day to object to the same.
5. The learned counsel while replying to the arguments submitted that he copies of the judgment and decree, which were received on 28-5-1985 were to complete as much as the name of the Court and title of the suit were not appended therewith, therefore, it was returned to the copy clerk and when the appellants failed to get the needful done they made a complaint to the trial Court on 8-7-1985 that they were given an incomplete copy and the Copying Agency was not delivering the complete copies to them. It was with the intervention of the Court that the copy was issued to the appellants on 4-7-1985 and on 17-7-1985 the appeal was filed, therefore, there was no-delay. n the alternative it was argued that since the case was remanded, therefore, fresh limitation shall start from 22-6-1986 the date of the second judgment on issue No. 4. It is further added that as the case was remanded, therefore, it would be deemed that the delay had been condoned. The fourth argument in this context is that the delay was duly explained, therefore, it was a fit case for acceptance of the application under section 5 of the Limitation Act.
6. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the record and precedent cases. I would like to deal with the preliminary objection first. The admitted position on record is that the appellant received the certified copies of the judgment and decree of the trial Court on 28-5-1985. It is not possible to accept their version that the copy was incomplete, therefore, it was returned to the concerned clerk for completing it and when he did not oblige them for a month or so then they complained to the trial Court. This was done, according to them, on 8-7-1985. The plea on the face of it is false and a mere concoction put forward with a view to clear the hurdle of limitation. The basic fallacy is that the copies although prepared by the Copying Clerk yet delivered to the parties and their learned counsel by the Incharge, therefore, there was no question of handing over the copies to the Copying Clerk. This point is clear even from the alleged application made by the appellants themselves which is addressed to the Incharge Copying Agency, Sessions Court, Lahore. This is not all. I have seen the copies even if it is assumed that the first page was missing still name of the Court, title of the suit appeared on the first page of the judgment given to the appellants. This is not all. The name of the Court and parties were, also, entered in the copy of the decree-sheet supplied, therefore, there was no justification to return it to the Copying Clerk. In any case they should have filed an appeal and if there was any objection raised by the appellate Court in this behalf then the appellants could have explained the same. They cannot be allowed to be judge of their own cause. Therefore, although this is an intelligent excuse yet false on the face of it. Secondly, if the permission of the Incharge was required for issuing the complete copy then what were the appellants and Copying Clerk doing from 28-5-1985 to 8-7-1985. This completely knocks out the bottom of the plea of the appellants. Thirdly, it is nowhere mentioned as to who received the copy on 28-5-1985 and returned it to the said Copying Clerk. For this reason there was no merit in the application under section 5 of the Limitation Act. This is beside the point that in spite of the fact that the Clerk of Court of the District Judge pointed out that the appeal was time-barred still the appellants did not move application under section 5 of the Limitation Act, which requires that the application should be moved along with the memorandum of appeal whereas the appellants moved the application on 29-7-1986 more than a year after the presentation of the memorandum of appeal. There was no explanation as to why the application was not moved earlier. The appellants clearly were negligent.
If such type of excuses are accepted then the whole purpose of Limitation Act would be frustrated.
The other argument of the learned counsel for the appellants to overcome the limitation that since the judgment on issue No. 4 was recorded subsequently and decree was also amended accordingly, therefore, the appeal filed prior to the said judgment and decree was well within time.
The argument is misconceived. The appeal was not accepted and case remanded under Order XLI, Rule 23; C.P.C. But in this case it was found that the trial Court has not recorded the findings on issue No. 4, therefore, dearly invoking the provision of Order XLI, Rule 25, C.P.C., the trial Court was directed to decide the issue and remit the finding so recorded to the District Judge. The parties had a right under Rule 26 to present a memorandum of objections to any such findings. It, also provides that the subsequent proceedings so recorded shall form part of the original record of the suit. The appellate Court thereafter shall proceed to determine the appeal. This clinches the whole issue. It means that the appeal would be decided as originally presented. This also disposes of the fourth argument of the learned counsel for the appellants that the case was remanded, therefore, the delay would be deemed to have been condoned. The argument is clearly misconceived and against record. The learned counsel when confronted with the proposition that in case it was a remand and there was a fresh judgment and decree then why the appellants have not fled an appeal against the same. The learned counsel has nothing to say in reply. This proves the hollowness of the argument. The appeal before the lower appellate Court was clearly time-barred and there is nothing wrong with the findings of B the learned District Judge on the point of the limitation. The same are confirmed.
7. Now coming to the finding on merits. The main argument is that the Courts below have completely ignored the statement of P.W.5 wherein he stated that the Khata was partitioned amongst the co-owners long back. The. Learned counsel for the respondent rightly pointed out that the statement is to be read as a whole and not certain portions in isolation. The P.W.5 has C categorically stated that he was not aware of the partition between the parties through revenue authorities or Civil Court. Moreover, the respondent herself appeared as P.W.4 and clearly stated in the cross-examination that she is owner in the Khata and the appellants did not challenge her statement. This is not all. Muhammad Rafique, Qanungo appeared as P.W.3. He was not cross- examined as to the partition of the Khata. The statement of the P.W.5 in face of the copy of Jamabandi for the year 1974-75 Exh.P.7 and copy of Jamabandi-- for the year 1970-71 Exh.P.5 is meaningless. This is not all. The appellants themselves produced copies of Jamabandi for the year 1974-75 Exhs .D.W.6/1 and D.W.6/2 wherein Khata is clearly recorded joint. This witness was examined by them while the issue No. 4 was referred to the trial Court for decision. In this view of the matter, there is nothing wrong with the concurrent findings of fact recorded by the Courts below that the pre-emptor is co-owner in the Khata.
8. This brings us to the legal objection to the effect chat since the documents of the plaintiffs no endorsement as required under Order XIII, Rule 4, C.P.C. Was made, therefore, the same cannot be read in evidence. If this documentary evidence is excluded then the plaintiffs had miserably failed to prove her superior right. The learned counsel for the appellants, in this behalf, has referred to the judgments in the cases of Murid Ahmad and Naik Muhammad.
9. The precedent cases do not support the appellants because in the case of Naik Muhammad the photo copies were produced and did not bear any exhibit mark. It was held that it did not fulfil any requirement of production of document under Order XIII, Rule 1, C.P.C. This is not the case here. The documents are all certified copies. The same were not only exhibit marked in the statement of the counsel for the plaintiff but on each document exhibit mark assigned to it has been put in the red pencil and the same is initialed by the trial Court, therefore, this case has no relevancy. While in the case of Murid Ahmad it was concluded that exhibit marks appeared to be in the hand of the reader of the trial Court and nothing more. It means that the same were not initialled or signed by the Presiding Officer, therefore, this case is clearly distinguishable. In the case of Murid Ahmad the decisions of Privy Council reported as Sadik Hussain Khan v. Hashim Ali Khan and others AIR 1976 Privy Council 27 and of Lahore High Court reported as Imam Din and another v. Sri Ram Perbhu Dial AIR 1928 Lahore 142 have been noted but the same also do not support the argument of the learned counsel for the appellants. In the case of Imam Din the High Court found it impossible as to which of the document or portion thereof had been relied upon by the trial Court. It was mainly for this reason that the case was remanded, therefore, it is also not relevant on this proposition. While in the case of Sadik Hussain Khan Privy Council only deprecated the practice of not making endorsement on the document exhibited and made adverse remarks against the Court concerned on account of its failure to observe the provisions of law but the judgment was not set aside on that ground.
10. This is not all. The effect of section 99, C.P.C. Was not examined in the case of Murid Ahmad. The same reads as under:-- "99. No decree to be reversed or modified for error or irregularity affecting merits or jurisdiction. -- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, nor affecting the merits of the case or the jurisdiction of the Court."
The failure to make endorsement on the documents produced in evidence is nothing but a procedural irregularity, which, therefore, the same is fully cured by section 99; C.P.C. And decree cannot be reversed of case remanded on this account alone. I am fortified in my view by the judgment reported as Hakim Khan v. Aurangzeb and another (PLD 1975 Lahore 1170). The relevant portion reads as under:-- " ....The omission to mark the documents, produced by the parties in accordance with the relevant provision of law is merely an irregularity which is otherwise curable. Reliance in this respect can be placed upon AIR 1933 Sindh 379 ...."
This objection is liable to be overruled for another reason namely that nobody should suffer on account of the act of the Court. Beside this even if the F documents of the plaintiffs are excluded still documents Exhs. D.W.6/1 and D.W.6/2 would take us to the same conclusion.
11. I find it my duty, before parting with the judgment, to make it clear that this should not be taken as a licence by the trial Courts to ignore the provisions of Order XIII, Rule 4 and similar of the provisions of the C.P.C. The Privy Council in the case of. Sadik Hussain Khan has already given a sort of warning to the trial Courts for observing the procedure but it is a matter of great regret that in spite of this the trial Court failed to follow the procedure. It is made clear that it is the duty of the trial Courts to follow procedure in C.P.C. And at least while hearing the arguments and dictating the judgment to check up whether all the documents have been properly exhibited, exhibit marks assigned and endorsements made. It should, also, check up whether the witnesses have been assigned correct and consecutive numbers. If there is any duplication, over-lapping or omission then the same shall be cured after recording a proper order in the presence of the parties. This is not all. Thereafter it is the duty of the lower appellate Court to have a re-check and if there is any failure to follow the procedure or any lapse this should be corrected and trial taken to task. It should be clearly understood that such omissions suggest that the officer is inefficient therefore liable to be proceeded under E&D Rules. This now is the only way to enforce strict compliance.
12. A copy of this judgment may be placed before the Hon---'be Chief Justice so the Registrar could be directed to issue the instructions as indicated in para. 11 of the judgment to the trial and lower appellate Courts while a warning to Mr. Arshad Javed Mir, the then Civil Judge, Lahore. This would be sufficient in view of the fact that it is an old matter and the District Judge ignored the lapses of the trial Court while deciding the appeal.
13. The upshot of this discussion is that there is no merit in this second appeal. The same is dismissed with costs.