' This revision petition is directed against the decree and judgment passed by Civil Judge Karak dated 19-12-1998 which was also upheld in appeal vide judgment dated 22-6-1999.
2. The petitioner filed a suit for pre-emption against the respondent regarding the land fully described in the heading of the plaint. The suit was contested through written statement on a number of legal and factual objections which include the non-compliance of requisite Talbs. The trial Court framed eleven issues in all including the relief. Both the parties were allowed to produce their respective evidence. At the conclusion of the trial, learned Civil Judge over-ruled the objection regarding estoppel against the plaintiff, partial pre-emption and benami nature of the suit being not pressed through evidence. Suit of the plaintiff was found within time and the sale consideration mentioned in the disputed sale mutation was found correct. As regards Talbs on which Issue No,6 was struck, the trial Court held that the requisite Talbs were made in accordance with law. Both the parties were found recorded owners in the disputed Khata. After giving finding on all the issues dismissed the suit of plaintiff-petitioner on the basis of finding recorded on Issue No,
1. While discussing Issue No,1 the trial Court has evaluated the entire evidence of the parties.
3. Feeling aggrieved from dismissal of his suit, the petitioner preferred an appeal and the respondent-vendee opted not to file an appeal or cross-objection against the finding of the trial Court on the basis whereof certain issues were decided against him. The Appellate Court though maintained the decree and judgment of the trial Court but only making an elaborate discussion on Issue No,6.
4. The learned counsel for petitioner attacked the finding of the Appellate Court on Issue No,6 whereby the findings of trial Court were reversed and it was held that the requisite Talbs under section 13 of the N.-W.F.P. Pre-emption Act, 1987 were not complied within letter and spirit and the testimony of two marginal witnesses of Talb-e-Muwathibat and Talb-e-Ishhad was not accepted.
The learned counsel for petitioner referred to Order 41 Rules 22, C.P.C. Whereby the respondent was required to file cross-objection against the finding on Issue No,6 recorded by trial Court. Failing to file cross-objection, the finding of the trial Court had attained finality and the impugned judgment of the District Judge reversing the finding of trial Court on Issue No,6 is without jurisdiction. In support of his contentions, he relied on Muhammad Aslam and others v. S. Muhammad Azeem Shah and others (1996 SCM R 1862), Kanwal Nain and others v. Fateh Khan and others (PLD 1983 SC 53), Khairati and others v. Aleem-uddin and others (PLD 1973 SC 295) and Kishan Kishore v. Din Muhammad and others (AIR 1929 Lah. 684).
5. The learned counsel for respondent submitted that concurrent findings of two Courts below cannot be reversed unless some jurisdictional defect of misreading and non-reading of evidence is pointed out. To substantiate his submissions, he relied on Abdur Raheem and others v. Mst.
Janatay Bibi and others (2000 SCM R 346), Ali Haider v. Amir Sher Bahadur Khan (1999 CLC 1878) and Shah Nawaz v. Umer Daraz and others (1999 CLC 1883). To meet the objection regarding non- filing of cross-objection regarding Issue No,6, the learned counsel submitted that the Appellate Court has got wide powers to do complete justice and irrespective of not filling the cross-objection, the Appellate Court can competently decide any issue. Such powers are vested in the Appellate Court under Order 41 rule 33, C.P.C. In support of his submission, he relied on Muhammad Nawaz v.
Mst. Ahmad Bibi and others (1995 SCM R 266), P.I.A. v. Messrs Khalid Brothers (PLD 1992 Kar. 78) and Government of Sind and others v. Mst. Sartaj Bibi and others (PLD 2001 Kar. 442).
6. This revision petition was admitted on the sole ground that the trial Court despite holding Issue No,6 in favour of petitioner-plaintiff committed an error to decide Issue No,1 relating to cause of action against the petitioner which fact was also over-looked by the Appellate Court. The learned counsel for parties argu,ed before this Court only the impact of decision of the trial Court on Issue No,6 in favour of petitioner and without filing cross-objection by the respondent, the Appellate Court reversed the findings of trial Court on Issue No,6 and held that the requisite Talbs were not performed by the plaintiff-petitioner. The learned counsel for petitioner has contended that the respondent was required to prefer an objection petition within thirty days under Order 41 rule 22, C.P.C. Against the finding recorded by the trial Court against him on Issue No,6 failing which the said finding had attained finality and the Appellate Court had no jurisdiction to reverse the finding on that issue.
7. In rebuttal, the learned counsel for respondent had taken shelter under Order 41 rule 33, C.P.C.
Whereunder the Appellate Court had got ample power to do complete justice and to grant decree which was refused by the trial Court even in favour of those who did not prefer any appeal. The two provisions of law relied upon by the parties are reproduced below:-- Order 41 rule 22, C.P.C.
"Upon hearing, respondent may object to decree as if he had preferred separate appeal.
' Any respondent though he may not have appealed from any part of the decree, may to only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him on his pleader of notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow.
' Form of objection and provisions applicable thereto.
(2) Such cross-objection shall be in the form of a memorandum and the provision of rule 1 so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto".
' Order 41 rule 33, C.P.C. Reads as follows:-- Power of Court of Appeal.
"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order".
8. The bare reading of the aforesaid two provisions of law would reveal that under rule 22 of Order 41, C.P.C., the decree-holder may file an objection against the finding of the trial Court decided against the decree-holder if he is not satisfied with the finding of trial Court on that or those issues decided against him. The decree-holder has got no right of appeal but his right of cross-objection arises only when the judgment-debtor prefers an appeal to the Appellate Court and the decree- holder may within thirty days could competently file a cross-objection on the issues decided against him which shall have the same form and force of an appeal. Failing to prefer cross- objection within thirty days from the date of service on a judgment-debtor would amount to admission of the finding of the trial Court on his part and thus those findings will be considered final and could not be re-opened by the Appellate Court.
9. Rule 33 of Order 41, C.P.C. Refers to a different situation, where there are more than one judgment-debtors and some of them prefer an appeal but the rest did not, even then the Appellate Court will have the power to set aside the decree against those judgment-debtors who fail to file an appeal. This rule also applies to the cases where a partial decree is granted by the trial Court which was appealed against in the Appellate Court, the Appellate Court will be seized of the entire lis and could grant the decree for the partial relief refused by the trial Court. This rule empowers the Appellate Court to do justice with the parties even if some of the judgment-debtors fail to prefer an appeal.
10. In the present case, there is no question of non-filing of appeal by some of the judgment- debtors, nor there is question of partial decree by the trial Court. Thus, the provisions of rule 33 of Order 41 C.P.C. Would not be attracted.
11. In Muhammad Aslam's case (1996 SCM R 1862), the august Supreme Court of Pakistan has laid down the following dictum:- "S. 15-Civil Procedure Code (V of 1908). O.XLI, R.22---Suit for pre-emption on basis of being co- sharer in Khata and being an heir of vendor defendant resisted such suit on ground of being a tenant of land in question trial Court found that plaintiff had superior right of pre-emption while rejected defendant's claim of being tenant of land in question. Defendant failed to file cross- objections in support of his claim of tenancy. Plaintiff's suit was dismissed by trial Court on ground of estoppel. Appellate Court, however, decreed plaintiff's suit and same was affirmed by High Court in second appeal. Defendant having failed to file any cross-objections before First Appellate Court was precluded to re-agitate such Issue in view of Kanwal Nain's case (PLD 1983 SC 53) wherein it was maintained that where no doss-objections had been filed before First Appellate Court to challenge finding on one of the issues involved in the finding on-one of the issues involved in the case, finding on that Issue attained finality and was not liable to be re-opened. Controversy raised in appeal having been concluded by the said dictum of Supreme Court, appeal was not competent on that basis".
12. In Kanwal Nian's case (PLD 1983 SC 53), it was observed as follows:-- "Learned counsel appearing in support of this appeal strenuously assailed the finding of the trial Court on the third issue between the parties whereby it was held that respondents Nos.2 and 3 were only benami purchasers in the first sale dated 17-6-1957 and that Fateh Khan was the real owner of the whole property. However, we cannot allow the applicants to agitate this question at this stage, as the controversy between the parties has all along, except in the trial Court, remained confined to the question whether the appellants were bona fide purchasers for value of the property from respondents Nos.2 and 3 as ostensible owners and whether they are entitled to take protection of the beneficial provisions of section 41 of the. Transfer of Property Act. Further no cross- objection seems to have been filed by the appellants to challenge the finding on this issue, in the appeal filed by Fateh Khan seeking to challenge the decree passed by the trial Court, The finding on this Issue has, therefore, attained finality and is not liable to be re-opened at this stage".
13.' In Khairati's case (PLD 1973 SC 295), the august Supreme Court of Pakistan laid down the following dictum in identical circumstances:-- "It is no doubt true that a respondent can support a decree even on points decided againsthim, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In the present case, the trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree, and this he could not do without filing any cross-objection".
14. All the aforesaid judgments support the case of petitioner herein as the Appellate Court who has discussed Issue No,6 only in his impugned judgment and has reversed the finding of the trial Court on Issue No,6 without filing cross-objections by the respondent.
15. As noted earlier, the trial Court of Civil Judge Karak vide his judgment dated 19-12-1998 decided Issues Nos.2 to 6 in favour of petitioner/pre-emptor, while under Issue No,7 both the plaintiff and respondent were found equally entitled to the purchase of disputed property, as both of them were found co-sharers in the disputed Khata. The sale consideration was found to be Rs,40,000 as recorded in the sale mutation on the basis of one year average prepared by the Patwari Halqa Exh.
P.W. 1/15. The petitioner was found non-suited for the decree as prayed for in view of discussion on Issue No,1 as observed in the following words:- "As the plaintiff has fulfilled the requirements of law of preemption but at the same time is unable to prove his case before the Court in letter and spirit. That is why I hold that he has not got cause of action to bring the present suit, hence the issue is decided against the plaintiff".
16. The learned District Judge of the Appellate Court after making an elaborate discussion on the law of pre-emption particularly the performance of Talbs and the effect of its non-performance as envisaged in section 13 of the N.-W.F.P. Pre-emption Act, 1987 observed that the witnesses of Talb- e-Muwathibat and Talb-e-Ishhad, namely, Adam Saz and Gulbat Khan were found not the truthful witnesses and their deposition was not believed. In this way, the Appellate Court has not concurred with the trial Court as regard Issue No,6. The case-law cited on the point that concurrent findings of two Courts below cannot lightly be interfered with unless material misreading and non-reading of evidence is noted are not applicable to the facts and circumstances of the present case. So far as the case-law produced on the provisions contained in Order 41 rule 33 are also not relevant here, because the said provision is not attracted in the controversy in hand
17. In view of the above, while accepting this revision petition remand the case to the Appellate Court where the appeal of petitioner No,17/13 of 1999 shall be deemed to be pending and be decided in accordance with law on all the issues agitated in the memorandum of appeal. So far as the finding of trial Court on issues Nos.2 to 6 are concerned, it has attained finality as no cross- objection was filed by the respondent in terms of Order 41 rule 22 C.P.C. Costs shall follow the event.
Parties are directed to appear before the District Judge Karak on 24-3-2003 and office is directed to ensure that record of the case alongwith this judgment is sent to the Court of District Judge Karak before the said date.