' This order will dispose of Civil Revision No,307/1997 and Civil Revision No,2719/1996 as the controversy forming subject-matter of these revision petitions is inter-linked and even otherwise arise out of a suit for possession through pre-emption presently pending between the parties.
2. Shehbaz Alam (petitioner in Revision Petition No,307/1997) filed a suit for possession seeking to pre-empt a sale of agricultural land in favour of respondents on the ground of his being ' Shafi Jaar' with the assertion that he having performed the requisite 'Talbs' is entitled to be substituted in place of the vendees i,e,, the respondents. The suit was resisted by the respondents who inter alia maintained that the land in dispute was obtained by them in exchange and that they have spent a huge amount on the improvement thereof and are also running business of brick kiln at the site.
The pleas as to the superior right of pre-emption and performance of 'Talbs' were also denied resultantly the learned trial Court framed as many as 10 issues in the case and proceeded to record evidence of the petitioner/pre-emptor. The petitioner produced as many as 8 witnesses including two witnesses who had attested the notice of ' Talb-i-Ishhad' but according to him it was through inadvertence that he could not tender in evidence the envelope containing the notice of '
Talb-e-Ishhad' which had been refused by the respondent and returned to him nor the notice contained therein could be proved at the trial. It however, appears from the record that the postal receipt and acknowledgement due in regard to notice of ' Talb-e-Ishhad' were sought to be tendered in evidence which were objected to on the ground that the same were not admissible per se. The learned trial Court did not decide the question there and then and preferred to defer the same with the observation that the question as to admissibility of these documents shall be resolved before the final arguments.
3. It was in the background aforenoted that the petitioner filed an application for additional evidence thereby seeking to prove the notice of Talbe-Ishhad' i,e, the envelope containing the notice, the notice itself as also the postal receipt and receipt for acknowledgement due. This application was resisted by the respondents but was granted by the learned trial Court vide its order, dated 14-9-1995 subject of-course to the payment of the costs of Rs,300. The respondents in C.R. No,307/1997 assailed the abovesaid order by filing a revision petition before the learned Additional District Judge, Depalpur which was dismissed on 24.1-1996 whereafter the said order alongwith the order of the revisional Court was challenged before this Court by having recourse to constitutional petition but with no fruitful results as the same was also dismissed. It was in consequence of the order, dated 14-9-1995 that the petitioner brought the relevant witnesses in the Court to prove notice of Talb-eIshhad' but the said witnesses were not allowed to be produced by the Court vide its order, dated 26-6-1996 mainly on the ground that the names of the witnesses sought to be produced by the petitioner were not mentioned in the petition itself and since the prayer was in regard to production of documents only therefore, the scope of his petition could not be enlarged so as to allow him to produce the attesting witnesses of the notice or the other witnesses connected therewith.
4. The abovesaid order has been assailed by the pre-emptor in C.R. No,307/1997.
5. The petitioner, however, thought of an alternative in that he filed an application under Order XVIII, Rule 17, C.P.C., thereby praying that the attesting witnesses of notice of ' Talb-e-Ishhad' be recalled so as to prove the said notice. This application was also resisted by the respondents but was' ultimately granted by the learned trial Court vide its order, dated 20-11-1996.
6. The abovesaid order has been assailed by the respondents in Civil Revision No,307/1997 by way of an independent Civil Revision (C.R. No,2719/1996).
7. Since the controversy forming subject-matter of two civil revisions aforenoted is not only inter- linked but also arise out of the same proceedings therefore, I propose to decide the same through this consolidated/common judgment.
8. The resume of the facts noted above would show that the two revision petitions i,e,, one filed by the pre-emptor and the other by the vendees are directed against two stages of the suit whereby at one stage the preemptor/petitioner in Civil Revision No,307/1997 having been allowed to prove the notice of 'Talb-e-Ishhad' by way of additional evidence was not allowed to produce witnesses to prove the same vide order, dated 26-6-1996 while at a later stage the said pre-emptor was allowed to recall the attesting witnesses of 'Talbe-Ishhad' so as to prove the same vide order, dated 10-10-1996. The earlier order has been assailed by the pre-emptor while the subsequent order has been assailed by the vendees in the two revisions noted above. In any case, it is so obvious that the pre-emptor has been allowed to prove notice of Talb-e-Ishhad' by recalling the attesting witnesses of notice of Talb-e-Ishhad' and if said order is sustained, the earlier order declining the request to produce the said witnesses shall have to be notionally set aside to as to put the record straight. This being the state of affairs existing on the record, the learned counsel for the petitioner in Civil Revision No,2719/1996 was called upon to address arguments in the first instance.
8-A. Mr. Rizwan Mushtaq, Advocate opened the debates by maintaining that the prayer as to production of witnesses of notice of 'Talb-e-Ishhad' having been disallowed vide order, dated 26- 6-1996 the same could not be allowed at a subsequent stage of the same suit under the garb of provisions of Order XVIII, Rule 17, C.P.C. As the general principle of res judicata bars the same. It was then submitted that the application seeking to produce notice of 'Talb-e-Ishhad' and the postal receipt under which the same was sent alongwith the receipt for acknowledgement due being absolutely silent as to production of some witnesses, the request to produce witnesses was rightly declined by the learned trial Court as the scope of the prayer made therein could not be enlarged either by the pre-emptor or by the Court. It was lastly urged that the provisions of Order XVIII, Rule 17 were not attracted in the facts and circumstances of the case and in any case a bare reading thereof would show that a power is vested in the Court to recall a witness, if necessary or deemed proper by the Court itself and it is no right of the party to ask for the recall of the witnesses or witnesses already examined.
9. Mian Hameed-ud-Din Kasuri, the learned counsel for the preemptor/petitioner in C.R. 307/1997 on the other hand maintained that the production of additional evidence could not be equated with recall of witnesses as the two provisions relating thereto are provided in the C.P.C. Under two distinct rules of Order XVIII, therefore, it could not be successfully maintained that the decision as to production of additional evidence and that of recalling the witnesses is one and the same muchless that the general principles of res judicata were attracted in the facts and circumstances of the case. As far the plea that the pre-emptor/petitioner in C.R. No,307/1997 had not prayed for production of witnesses to prove the notice of ' Talb-e-Ishhad', it was submitted that the word 'proof' as understood in legal parlance as also in the general sense of the word did mean and include production of witnesses to prove the same. In this regard the provisions of section 13 of the Punjab Pre-emption Act, 1991 were referred to maintain that the notice of Talb-e-Ishhad' could only be proved by production of attesting witnesses. It was then maintained that the order declining production of witnesses tantamount to frustrating the intention of the order allowing production of additional evidence and that in any case it amounted to giving by one hand and taking by another. As far the general principle of production of evidence and additional evidence is concerned, learned counsel relied on celebrated judgments of the Supreme Court rendered in the cases of Zarwali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) and Mst. Fazal Jan v.
Roshan Din and 2 others (PLD 1992 SC 811) to contend that provisions in regard to production of additional evidence are now being liberally construed and the Courts lean in favour of production of such an evidence rather than declining the same on the basis of technicalities of procedure. As far the plea that the provisions of Order XVIII, Rule 17 could not be invoked by a party to the lis, it was submitted that even the parties in proper cases had the right to seek recalling of the witnesses and this right is recognized and conceded in favour of the parties. Reliance in this respect was placed on Madhubhai Amthala v. Amtha Lal Nandlal and others (AIR (34) 1947 Bombay 156), Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527), Sultan Saleh Bin Omer v.
Vijayachand Sirimal (AIR 1966 Andhra Pradesh 295), Chairman, Notified Area Council, Bhaniansar and another v. Kundini Lingaraju Patra (AIR 1974 Orissa 17), Muhammad Amir Qasmi v. Ch. Muhammad Azhar Shaheen (PLD 1985 Lahore 234) and Rakhmat Jan v. Gul-e-Nargis and 6 others (PLD 1989 Lahore 506).
10. The arguments of the learned counsel for the petitioner in Civil Revision No,2719/1996 did appear ingenious and plausible at the first blush but on deeper probe nothing turned on them. It is matter of record that the preemptor/petitioner in C.R. No,307/1997 was allowed to prove the notice of Talbe-Ishhad' and the said notice could only be proved by production of attesting witnesses thereof. The order allowing the production of additional evidence could not be frustrated or set at naught by declining the request of the preemptor to produce the attesting witnesses in the evidence. It was rightly argued by the learned counsel for the petitioner in C.R. 307/1997 that it tantamount to giving by one hand and taking by the other. The word 'proof' as is commonly understood in the legal parlance as also in the general sense of the word means and include proof by production of witnesses so that the other party should have the opportunity to cross-examine such a witness or witnesses in order to reach the truth unless be it a case of documents which are per se admissible in evidence such as certified copies of judicial records; official documents or any other document as allowable under the law. A bare reference to section 13 of the Punjab Pre- emption Act, 1991 would show that the notice of Talb-e-Ishhad is required to be attested by two truthful witnesses and in order that the truthfulness of the said witnesses be tested on the touchstone of judicial process, the attesting witnesses are required to be produced for the purposes of establishing as to whether such witnesses had at all attested notice of Talb-eIshhad' as also for the purpose of reaching the truth or otherwise of such an assertion by conducting cross-examination on them. Again, it is now well accepted that the attestation of notice of 'Talb-e- Ishhad' and the proof thereof is not a mere formality but a sine qua non for the exercise of very right of preemption. This being so, the question as to whether the omission on the part of the petitioner in not confronting the notice of ' Talb-e-Ishhad' and the receipts attached thereto to the attesting witnesses at the time that they were produced in evidence should have been visited with the penalty thereby disallowing him to either produce the said witness or to recall them as allowable under the law can well be answered, in so far as the first part of the question is concerned, by a reference to the rule laid down in the case of Zarwali Shah and Mst. Fazal Jan as noted supra wherein it is held where one or other party had failed to request for proper examination of the disputed documents/signatures, the Court had ample power to do the needful so as to advance justice rather than injustice. The rule even goes beyond by laying down that the concept of bar against filling the gaps in evidence was no more available in Pakistani Jurisprudence and the law including, the precedent law on Islamic principles which are being made applicable progressively to the proceedings before the Courts and other forums which were required to record/admit evidence. In view of the rule aforenoted, there is no escape from the conclusion that the age old concept of bar against filling the gaps has been discarded as legacy of the past and instead Islamic principle of doing ultimate justice has been made applicable to the proceedings before the Court and other forums. Rather a duty is cast on the Court to see to it that proper evidence is produced and the conduct on the part of the party or parties failing in that regard should not always be visited with the penalty by applying technicalities of procedure. It would be noted that the petitioner, having failed to prove the notice in accordance with law, did try to make amends by initially filing an application for production of additional evidence and, thereafter, by producing the attesting witnesses of the said notice but his effort in that regard did not bear any fruits because the learned Trial Court did not allow him to prove the notice of 'Talb-e- Ishhad' by production of attesting witnesses thereof on the basis of sheer technicalities of procedure. This refusal, on the part of the learned Trial Court to exercise jurisdiction in favour of the petitioner, cannot be sustained in view of the rule of law laid down by the Supreme Court in the case of Zarwali Shah. As a matter of fact the circumstances of the case were such that the learned Trial Court ought to have exercised its jurisdiction by allowing the petitioner to produce the attesting witnesses of the notice so as to do the complete justice in the case.
10-A. This brings me to the second part of the question as to whether the attesting witnesses of notice of Talb-e-Ishhad' could be recalled so as to supply the omission on the part of the petitioner whereby he failed to prove the same at the time of their examination in the affirmative evidence as also the ancillary question as to whether such a course, if adopted, was barred by general principle of res judicata. The primary plea in that regard that such a jurisdiction is vested C in the Court alone and that too for the purpose of clarification or elucidation of some material questions involved in the case is not well founded. It is now a foregone conclusion that a party to the lis can also file and maintain an application under Order XVIII, Rule 17 and in appropriate cases witnesses can be recalled on the motion of a party or parties to the proceedings. If any authority is needed in that regard reference may advantageously be made to the cases of Madhubhai Amthala v. Amtha Lal Nandlal and others (AIR (34) 1947 Bombay 156), Muhammad Amir Qasmi v. Ch. Muhammad Azhar Shaheen (PLD 1985 Lahore 234) and Rakhmat Jan v. Gul-e-Nargis and 6 others (PLD 1989 Lahore 506).
11. Apart from the judgments rendered in the abovesaid cases, wherein the provision of Order XVIII, Rule 17 had been interpreted to mean that any party or parties to the proceedings can file and maintain such an application, the theory of "recall of witnesses" has also been recognized in the realm of inherent jurisdiction of the Court. Reference may make to Sultan Saleh Bin Omer v.
Vijavachand Sirimal (AIR 1966 Andhra Pradesh 295) and Manohar Lal Chopra v. Raj Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527). In the case of Manohar Lal Chopra noted supra, the Supreme Court of India expressed itself as follows:- ' Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognises the existence of the inherent power, of the Court, there is no question of implying any powers outside the limits of the Code. Thus, the inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by section 151 of the Code.
' It would be noted that here also the concept of "ultimate justice prevailed for the age-old rider that an inherent jurisdiction can only be invoked when no specific provision to meet a particular situation is available in the code was discarded to hold that the inherent powers of the Court are complementary and in addition to the powers specifically conferred on the Court by the Code. It is, thus, obvious that the scope of examination of a witness or witnesses on his or their being recall as conferred by the Court under Order XVIII, Rule 17, C.P.C. Was enlarged by invoking the inherent powers of the Court under section 151, C.P.C., thereby allowing that a witness may be examined, cross-examined and re-examined. Needless to add that this could only be achieved by having recourse to the inherent powers of the Court for a bare reading of Rule 17 of Order XVIII would show that examination of a witness on being recalled is somewhat restricted in the sense that a discretion is vested in the Court to put him such question as he thinks fit.
12. The two stages of the present case whereby at the one stage, the petitioner was allowed to produce additional evidence so as to prove the notice of ' Talb-e-Ishhad while at a subsequent stage was disallowed to produce attesting witnesses of the said notice did create an anamolous situation which at the trial stage was sought to be remedied and rightly so by invoking inherent powers of the Court apart from challenging the said order in a revision which was filed at a time when the respondent herein and petitioner in connected revision petition had proceeded to challenge the order passed on the application seeking recall of the witnesses. It would be noted that the procedural order whereby the petitioner was disallowed to produce the attesting witnesses of the notice of ' Talb-e-Ishhad' has already been held to be tainted with material irregularity therefore, unsustainable but since the second order whereby the petitioner was allowed to recall the witnesses had also been challenged in the connected revision petition which was argued with vehemence, therefore, I have proceeded to decide this aspect of the matter also.
12. The last question, which was argued first by the learned counsel for the petitioner in connected civil revision that the recall of the witnesses could not be allowed in the peculiar facts and circumstances of this case because impliedly it tantamount to redefining the question of producing the attesting witnesses of notice of ' Talb-e-Ishhad' and such a course was barred in view of general principle of res judicata, may not detain me any longer for producing a witness and recalling a witness are two different concepts and have been dealt as such in two different provisions of Order XVIII. The mere fact that the two situations are different in nature and independent of each other are enough to conclude that decision of one would not foreclose the decision in the other nor the same can be equated with each other to hold that the general principle of res judicata would be applicable.
13. For the reasons stated above, Civil Revision No,307/1997 is allowed resultantly the order, dated 20-11-1996 is set aside while Civil Revision No,2719/1996 is dismissed, resultantly, the petitioner in Civil Revision E No,307/1997 is allowed to examine the attesting witnesses of the notice of Talb-e- Ishhad' so as to prove the same by producing the total relevant evidence in regard thereto. There shall however, be no order as to costs.
13-A. In view of the consensus reached between the learned counsel for the parties, the learned trial Court is directed to dispose of the main case within four months from the date of communication of this judgment.