SAVED NAJAM-UL-HASSAN KAZMI, J. - This judgment will decide RSA No. 121 of 1985.
2. Land measuring 123 kanals, 3 marlas was purchased by appellants vide registered sale-deed, dated 18.6.1975. Muhammad Yaqub, .Respondent herein, filed a suit to pre-empt the sale on the grounds of being collateral of the vendor. The suit was resisted on the grounds that it had not been instituted by Muhammad Yaqub, the thumb impressions on the plaint were not that of the respondent, the respondent had no superior right of pre-emption and that the suit was not within time.
3. Learned Civil Judge dismissed the suit on 21.12.1980. In appeal the judgment was set aside and the suit of respondent was decreed which led to the filing of this appeal.
4. Learned counsel for the appellant argued that the thumb impressions were clear and that the report could have been given if an effort to examine the thumb impressions had been seriously made. It was added that the respondent never appeared in the witness-box and, therefore, the presumption should have been drawn against him. Learned counsel submitted that the respondent could not prove him to be collateral of the vendor as no oral evidence was produced.
Learned counsel submitted that neither respondent appeared in witness-box nor other affirmative oral evidence was adduced to connect the respondent with the vendor through Exh.P-3, Exh.P-4 and Exh.P-6. It was also argued that the appellant had taken the plea of tenancy at the time of sale and produced Exh.D-4 which was not considered. Lastly learned counsel submitted that the Appellate Court confined itself to issue No. 7 and did not return any findings on other issues.
5. In reply learned counsel for the respondent supported the impugned judgment and argued that the respondent did not deny his thumb impressions and that any defect in signatures being procedural error could not vitiate the proceedings. Lastly learned counsel submitted that the other issues were not challenged in appeal.
6. From the impugned judgment, it is obvious that the learned Additional District Judge confined himself to issue No. 7 which relates to the effect of non-signing of the plaint by the respondent. The objection of the appellant was that the plaint did not bear thumb impressions of the preemptor.
Civil Judge returned findings in favour of the appellant while in appeal, the learned Additional District Judge observed that it was a futile effort to make investigation in this regard as the respondent did not disown his thumb impression. After dealing with issue No. 7, the learned Additional District Judge proceeded to accept the appeal and decreed the suit. The judgment does not indicate if the other issues were not pressed or the findings on other issues were not challenged.
7. From the evidence on record, it is discernible that the respondent did not deny, that some of the appellants were also related to the vendor but it was pleaded that by joining the stranger, they had allegedly sunk their right. Respondent did not produce any oral evidence in defence, to connect the entries of Exh.P-3, Exh.P-4 and Exh.P-6 with the respondent. It was necessary for the respondent to produce the oral evidence and the concerned functionaries, who had prepared the pedigree-table for the purpose of connecting the appellant with the vendor.
8. In "Muhammad Naeem and others Vs. Ghulam Muhammad and others" (1994 SCM R 559), it was ruled, that if the pre-emptor simply tender the copy of pedigree-table in evidence and did not produce evidence to show that the pedigree-table pertain to the pre-emptor, the suit could not he decreed. Similar view was taken in "Muhammad Hussain and others Vs. Muhammad Khan" (1980 SCMR 1026). In this case, the respondent did not produce any oral evidence to connect him with the vendor and to show that the entries belonged to him. The learned Trial Court did record findings on the issue of superior right but the Appellate Court did not record any evidence nor attended the case in the light of the observations made herein above. The learned Additional District Judge also did not examine the question of divisibility of sale in case of joinder of stranger by the vendor. The judgment does not give an impression that the findings on the other issues were not challenged.
Obviously, the suit has been dismissed by the Trial Court and while defending the judgment, the appellants were entitled to defend the judgment and also to argue on the issues which were decided against them by the Trial Court. The appeal being rehearing and reappraisal of the entire matter, the Appellate Court was, duty bound to examine all the issues and return findings.
9. As regards the objection to the defective signing of plaint, it may be observed that any defect in signatures or signing of the pleadings Coes not render the plaint invalid. This being so, procedural defect can be cured at any stage by appropriate inquiry. Even if the respondent did not appeal: in the Trial Court yet in appeal he had re-affirmed that the suit was filed by him. In this view of the matter, any alleged defect in signing of the plaint could not vitiate the pleadings nor render the proceedings as illegal. The view taken by the learned Additional District Judge, on issue No. 7, being in accordance with law, does not warrant any interference.
10. Since the other issues have not been decided by the learned Additional district Judge, therefore, the case will have to be remanded for the decision of the appeal after attending to the other issues. Learned counsel for the respondents, submits that the question of production of additional evidence to connect the entries in the pedigree-table, shall be left open and the respondents shall be allowed to produce additional. Evidence, if need, be, to connect the entries in the pedigree- table.
11. This appeal is, therefore, allowed, the impugned judgment is set aside , with the result that the appeal of respondent shall be deemed to be pending. In case the respondent would apply for additional evidence, the same will be allowed by the learned Additional District Judge with opportunity of rebuttal to the appellant. The learned Additional District Judge will decide the appeal after deciding the other issues, in accordance with law and on its own merits, in the light of the observations herein above: The appeal will he finally decided within three months