1. ' The brief facts out of which the present revision petition arises are that Muhammad Tufail sold the land measuring 160 Kanals situated in village Manduwala Mankera, for a consideration of Rs.3,50,000 vide registered. Sale-deed dated 30-3-1993. The petitioner filed a suit for preemption before the Civil Judge 1st Class. Mankera on the basis of co-sharer, Sharik Khata on 28-7-1993. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the requisite Talbs duly performed by the plaintiff? OPP.
2. (1A) Whether the plaintiff has right of pre-emption and is entitled to get the decree for possession through pre-emption as prayed for? OPP.
(2) Is suit barred by limitation? OPD
(3) Is suit wrongly valued for the purposes of court-fee and jurisdiction? What is correct valuation?
OPD
(4) Are defendants entitled to special costs? OPD
(5) Are defendants entitled to incidental charges as well as improvements? To what extent? OPD
(6) Was ostensible sale price fixed in good faith and actually paid? OPD
(7) If Issue No.6 is not proved, what was market value of the suit land at the time of sale? OPPs.
(8) Relief.
3. ' The learned trial Court decreed the suit vide judgment and decree dated 8-11-1994 and also determined the consideration amounting to Rs.1,63,200 instead of Rs.3,50,000. The respondents being aggrieved preferred an appeal before the learned Additional District Judge, Kallur Kot, Camp at Bhakkar, who accepted the same vide judgment and decree dated 13-6-1996. The petitioner being aggrieved filed Civil Revision No.2569 of 1996 before this Court, which was accepted vide judgment dated 7-11-2002 and the case was remanded to the First Appellate Court to decide the case afresh. The learned Addl. District Judge after remand accepted the appeal vide impugned judgment and decree dated 2-7-2003, hence, the present revision petition.
2. The learned counsel of the petitioner submits that the First Appellate Court erred in law to accept the appeal of the respondents merely on the ground that original notice was never tendered by the petitioner in evidence nor any notice to produce the document was got issued by the petitioner/plaintiff against the respondents/defendants and they only sought permission to produce secondary evidence. The findings of the First Appellate Court is not in accordance with Article 77(1) of the Qanun-e-Shahadat Order, 1984. He further submits that the First Appellate Court decided the case without proper appreciation of evidence as is evident that objection was raised by the respondents before the trial Court but subsequently, trial Court allowed the petitioner to produce secondary evidence on the statement of the counsel of the respondents-, therefore, judgment, of the First Appellate Court is result of misreadingand non-reading of the record. He further submits that the First Appellate Court erred in law to non-suit the petitioner that petitioner did not send notice to the minors through their father, which is also result of misreading or non- reading of the record. The sale-deed was executed in favour of the respondents through their real brother Abdul Ghafoor as is evident from page 68 of the backside of the sale-deed. He further submits that respondent Abdul Ghafoor brother of the respondents and the respondents are living in one house., He further submits that petitioner has rightly sent notice to the respondents through their real brother, which is in consonance with the contents of the sale-deed. Copy of the Postal Receipt and A.D. Was also tendered in evidence as Exh.P.2, and Exh.P.3, which are at page 65 of this file. He further submits that mere dispatching of the notice is sufficient compliance of requirement of the provisions of the Punjab Pre-emption Act, 1991. In support of his contention, he relied upon Muhammad Saleem Shah and others v. Aziz-ur-Rehman Shah and others (PLD 2002 Lahore 280).
4. He further submits that in pre-emption matters, substantial compliance is considered to be sufficient. In support of his contention, he relied upon the following judgments:-- ' Muhammad Aslam v. Muhammad Hussain (1999 SCMR 1332). Abdul Malik v. Muhammad Latif (1999 SCMR 717).
5. ' Muhammad Gull v. Muhammad Afzal (1999 SCMR 724).
6. ' He further submits that section 13 shall be read with section 14 wherein the minor has given right to send notice to the purchaser through his agent. In case the plea of the respondents be accepted then section 14 of the Punjab Pre-emption Act, 1991 would be redundant. He further submits that petitioner has specifically mentioned date and name of the witnesses in contents of para. 4 of the plaint, which is sufficient compliance of provisions of section 13 of the Punjab Pre-emption Act, 1991 and the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-- ' Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315). Altaf Hussain v. Abdul Hameed and others (2000 SCMR 314).
7. ' Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329).
8. ' He further submits that judgment of the larger Bench is binding upon this Court. In support of his contention, he relied upon the following judgments:-- ' Fazal Mahmood Chaudhry v. Ch. Khadam Hussain (1997 SCMR 1368).
9. ' Babar Shehzad v. Said Akbar and another (1999 SCMR 2518).
10. ' Chief Settlement Commissioner v. Mian Ihsanul Haq (1999 MLD 1400).
11. ' Unreported judgment in C.R. No.5 of 2002 dated 20-4-2004.
12. ' He further submits that minor contradictions in pre-emption suit be ignored. In support of his contention, he relied upon the following judgments:-- ' Tajamal Hussain Khan v. Allah Ditta and another (PLD 2002 Lahore 833).
13. ' Abdul Qayum v. Mushk-e-Alam and another (2001 SCM 798). Abdul Rashid v. Umid Ali and 2 others (PLD 1975 SC 227). Tajamal Hussain Khan v. ' Allah Ditta (2003 MLD 14).
14. ' He further submits that petitioner has filed a suit against the minors through their real brother and subsequently suit was amended on the objection of the respondents to the extent that suit was amended qua name of parties i.e. Respondents through their real father instead of their brother, therefore, the First Appellate Court erred in law to non-suit the petitioner, which is not in consonance with the law laid down by the superior Courts. In support of his contention, he relied upon Muhammad Zubair and another v. Saleh Muhammad and 2 others (1993 CLC 1047).
3. The learned counsel of the respondents submits that endorsement on the sale-deed that the land in-question was purchased by the respondents through their real brother does not mean that the petitioner can file a suit against the minors through their real brother. He further submits that sale-deed can be registered in favour of the minors even through a third person, therefore, Talbs were not proved on the record by the respondents in terms of section 13 of the Punjab Pre-emption Act, 1991. He further submits that petitioner has not mentioned place and time in para. 4 of the plaint. He further submits that P.W.1, P.W.2 and P.W.3 have given statement before the trial Court, which are contradictory in nature. In case the statements of all the three P.Ws. And contents of para. 4 of the plaint be read together then it is crystal clear that all are variance with each other qua time, place and datf, therefore, the First Appellate Court was justified to consider these discrepancies as major contradictions therefore, the First Appellate Court was justified to reverse the findings of the trial Court. He further submits that judgment of the First Appellate Court is in accordance with the law laid down bythe superior Courts. In support of his contention, he relied upon the following judgments:-- ' Haji Lal Shah v. Abdul Khaliq and another (2004 SCMR 409). Shafi Muhammad v. Muhamad Hazar Khan (1996 SCMR 346). Khani Zaman v. Shah ' Hussain and others (PLD 1998 SC 121). Muhammad Akbar v. Muhammad Raique (2003 MLD 906).Saleem Akhtar v. Ch. Shauk Ahmed (2000 MLD 1391).
15. ' He further submits that suit was not filed initially against the respondents through their natural guardian, therefore, suit of the petitioner was not maintainable against the minors and this fact was properly noted by the First Appellate Court and penal consequences flows automatically on the well known principle that when a thing is to be done in a particular manner it must be done in that particular manner and not otherwise as the law laid down in Mst. Mah Jehan v. Abdul Maroof (2000 MLD 814). He further submits that section 13 of the Punjab Pre-emption Act, 1991 should be read independently and should not be read with section 14 of the Punjab Pre-emption Act, 1991. He summed up his arguments that judgment of the First Appellate Court is in consonance with the law and the learned counsel for the petitioner fails to point out any infirmity or illegality in the impugned judgment of the First Appellate Court, therefore, revision petition is liable to be dismissed.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is admitted fact that the petitioner filed C.R. No.2569 of 1996, which was accepted vide judgment dated 7-11-2002 and the case was remanded to the First Appellate Court to decide the case afresh with certain directions. It is admitted fact that judgment of this Court was not challenged by any of the parties before any higher forum, therefore, judgment of this Court dated 7-11-2002 passed in C.R.No.2569 of 1996 is final between the parties on the well known principal of res judicata in view of section 11 of C.P.C. As the law laid down by the Honourable Supreme Court in Pir Bakhsh v. The Chairman Allotment Committee and others (PLD 1987 SC 145). It is better and appropriate to reproduce the operative part of para. 6 of the judgment dated 7-11-2002:-- "It is admitted fact that the First Appellate Court decided the appeal without adverting to the reasoning of the trial Court in case the findings of both the Courts below qua Issue No.1 is put in juxta position, therefore, the impugned judgment of the First Appellate Court is not in accordance with the dictum laid down by the Honourable SupNaie Court in Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617). The relevant observation is as follows:-- ' It seems to us that this is a case where the First Appellate Court has reversed the findings of the trial Court without paying any heed to the reasoning given by the First Appellate Court.
16. ' It is also admitted fact that the First Appellate Court decided the case against the petitioner on the basis of the law laid down in (1995 CLC 769). The aforesaid judgment is no more in the field in view of the law laid down by the Honourable Supreme Court in Altaf Hussain v.-Abdul Hameed and another (2000 SCMR 314) and Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329).
17. The judgment of the First Appellate Court is in violation of the law laid down by the Honourable Supreme Court in the aforesaid judgments. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Knawal Nian's case (PLD 1983 SC 53) to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse with grave injustice would result therefrom. The First Appellate Court has committed material irregularity. This Court has ample jurisdiction to disturb the findings of facts in such situation as per principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case (1988 SCMR 851). It is also admitted fact that petitioner did not attach all the documents with the revision petition as is evident from Anexure-E at page 32 the title of the suit respondents through their real father whereas the original suit filed by the petitioner reveals that petitioner filed the suit against the respondents through their real brother Abdul Ghafoor as is evident from Annexure-D. This fact was not considered by both the Courts below in their respective judgments. In case I reappraise the evidence myself then one of the parties will lose remedy of revision before this Court.
18. ' Keeping in view these circumstances, I set aside the judgment of the First Appellate Court and remained the case to the First Appellate Court to decide the appeal of the respondents afresh in terms of the law laid down by the Honourable Supreme Court in Madan Gopal and 4 others v.
19. Maran Bepari and 3 others (PLD 1969 SC 617) preferably within four months after receiving the order of this Court. Parties are directed to appear before the First Appellate Court on 21-11-2002. The First Appellate Court shall decide the appeal of the respondents afresh without being influenced by the aforesaid observations of this Court, strictly in accordance with law on merits."
20. ' It is pertinent to mention here that the First Appellate Court has decided the case after remand in violation of the direction and parameters prescribed by this Court in the earlier round of litigation.
21. The First Appellate Court did not meet the reasoning of the trial Court vide impugned judgment.
22. This fact brings the case in the area that the First , Appellate Court has decided the appeal without application of mind, which is a condition precedent as the law laid own by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan and `others (PLD,1970 SC 173).
23. After addition of section 24-A in the General Clauses Act, even the public functionaries are duty bound to decide the cases of the citizens after application of mind with reasons, as the law laid down by the Honourable Supreme Court in M/s. Airport Support Service v. The Airport Manager, Karachi Airport (1998 SCMR 2268). It is also settled principle of law that judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. The First Appellate Court has decided the case without application of mind and in violation of the parameters prescribed by this B Court in the aforesaid judgment, therefore, impugned judgment is not sustainable in the eye of law-. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as the law laid down by the Honourable Supreme Court in Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213). In the present case, as mentioned above, in the earlier round of litigation, the First Appellate Court was directed to decide the appeal after meeting the reasoning of the trial Court but the First Appellate Court has decided the case in violation of the parameters prescribed by this Court in the earlier round of litigation, therefore, the impugned judgment and decree of the First Appellate Court is set aside. Meaning thereby the appeal filed by the respondents shall be deemed to be pending adjudication before the First Appellate Court. Parties are directed to appear before the First Appellate Court on 14-7-2004, who is directed to decide the appeal of the respondents afresh in terms of the aforesaid direction positively within four months after receiving the order of this Court.
24. Parties and their counsel are directed to co-operate with the First Appellate Court so that the matter may be finalized within the stipulated period. In case any of the parties would not co- operate with the First Appellate Court then the First Appellate Court is directed to invoke the penal provisions against that party in accordance with law so that the matter may be finalized within the prescribed period.
25. ' In view of what has been discussed above, the revision petition is accepted in terms of the aforesaid direction with no order as to costs.