' Through this revision petition, the petitioner is seeking relief for setting aside the judgment and decree passed by Civil Judge-I; Mansehra in Suit No,463/1 passed on 25-9-1991 whereby his suit was dismissed. He has also prayed for setting aside the order of the Appellate Court dated 5-7- 1993.
2. Brief facts of the case are, that the petitioner filed a suit for possession through pre-emption regarding the suit property, the mutation whereof was attested on 13-2-1988. The suit was filed on 11-2-1989 and in para. 2 of the plaint the plaintiff has prayed that he has made 'Talb-i-Muwathibat' and 'Talb-iIshhad' in presence of the witnesses expressing intention to exercise his right of pre- emption.
' The respondent-defendant filed written statement, and while taking preliminary objection has specifically mentioned that the suit is liable to dismissal under North-West Frontier Province Pre- emption Act, 1987.
3. Learned counsel for the petitioner submitted that the order of the Appellate Court is not maintainable on the ground that the learned Appellate Court instead of deciding application for adducing additional evidence has decided the main appeal, and that, while deciding main appeal, the Appellate Court has not discussed the evidence on the main points having bearings on the merits of the case.
4. Learned counsel for the petitioner has also challenged the judgments and decrees of the two Courts below on the ground that no specific issue was framed by the learned trial Court in terms of para. 2 of his plaint to the effect that "whether or not the petitioner has fulfilled the requirements of section 13 of the Act", ibid.
5. Learned counsel in support of his submissions referred to case titled "Pakistan Carpet Industries Ltd. v. Government of Sindh and others" 1993 CLC 334 wherein it was held that "before hearing final arguments in a suit or any appeal, it was incumbent upon Court, first to ensure that every miscellaneous applications filed by parties stood disposed of irrespective of the fact whether the party concerned pressed it or not--in case it was not pressed, it could be dismissed on that account, but a specific order must be passed in that regard". Similarly, has placed reliance on case reported in Wali Muhammad and others v. Hafiz Karim Bakhsh and others 1993 CLC 1164 the headnote of which is as under:-- "First Appellate Court being a final Court of fact, neither adverted to the evidence nor to the findings recorded thereon by the trial Court; ' such Court did not independently examine material controversial points between the parties for their satisfactory decision by it--Judgment in question, was, thus neither legal nor proper; it gave a clear impression of a sketchy approach---Appellate Court was obliged to examine factual as well as legal plane of the controversy for its proper decision-- Judicial application of mind wanting, revision deserved to be allowed for re-consideration and decision afresh of the appeal---Case was remanded for decision afresh on the material already on the record by the first Appellate Court."
' Learned counsel also referred to Nadir Khan v. Muhammad Aslam Khan 1991 M LD 938 wherein it is held: "A perspective pre-emptor may refer to making of Talb-i-Muwathibat in notice of Talb-i-Ishhad, if he so desires, but neither he is bound nor section 13(3) of Act requires him to do so--."
' Learned counsel also referred to Gul Nawaz v. Gul Bazar 1996 M LD 1406 which is to the effect that learned trial Court did not frame issue of "Talbs" which had prejudiced the case of the rival pre- emptors therefore in absence of distinct issue, parties did not shoulder responsibility of proof or rebuttal of Talbs. The case was remanded back to the trial Court.
6. Learned counsel for the respondents in rebuttal of arguments submitted that in para. 2 of the plaint no details of 'Talb-i-Muwathibat' have been given which is prerequisite for exercising the right of pre-emption, he submitted that there is reference to witnesses, but their names have not been given therein. He submitted that para. 2 of the plaint is scanty and does not fulfill the requirement of law. Therefore, submitted that the preliminary objection raised in the written statement at Serial No,4 is sufficient denial of para. 2 of the plaint.
7. Learned counsel for the respondent has taken me through the evidence of Hayat Khan the petitioner. A reading of the statement clearly shows that no where he has stated that on having received information of sale mutation he has shown his intention by making 'Talb-i-Muwathibat' as well as of 'Talb-iIshhad'. The learned Civil Judge has dealt with the evidence at length and has come to the correct finding of fact that petitioner-plaintiff has failed to establish his right of pre- emption and that plaint was deficient as not having fulfilled the requirement of section 13 of the Act ibid. Referred to the judgments cited above, with respect, I am of the view that none of those judgments are relevant and applicable to the facts of the instant case. The application of the petitioner for production of additional evidence at appellate stage has been considered by the learned appellate Judge while deciding the appeal and is based on reasons.
The gist of application for production of additional evidence is to fill in the lacuna crept in the case of the petitioner at the very start of the suit. The names of the witnesses before whom Talb-i- Muwathibat was made (if any) are not given in the plaint itself nor they appear in the list of witnesses filed by the petitioner-plaintiff. Hence it will be rather unjust as against defendant- respondent to have allowed additional evidence at appellate stage. The Courts are to administer justice in accordance with law but not to help a particular party who has failed to discharge or perform an act/duty cast on it by or under the law.##TES##
9. The evidence of plaintiff-petitioner as already held is devoid of any force as in his entire examination-in-chief he has not made any reference to any 'Talb-i-Muwathibat' or 'Talb-i-Ishhad'.
He has not named the witnesses in whose presence he has shown his intention to pre-empt.
10. The objection that no specific issue was framed about 'Talb-iMuwathibat and for 'Talb-i-Ishhad', is not significant because the very purpose of framing of issue is to put at guard the parties to the 'lis' to know the points of controversy. In this case it was the petitioner-plaintiff who claims the possession of the property by exercising right of pre-emption. As such it was his duty to have insisted before the trial Court in framing specific issue about "Talbs".
' Moreover, non-framing of issue, where no prejudice has been caused to the parties is not material particularly to the plaintiff-petitioner, because it was he who has knocked the door of the Court and was duty bound to adduce evidence in support of his claim.
11. The non-disposal of application for additional evidence by the Appellate Court is misconceived because in the appellate judgment reasons have been elaborated and application for additional evidence has been rejected.
12. For reasons stated above and keeping in view that there are concurrent findings of fact this revision is dismissed and the judgments/decrees of the lower Courts are upheld.