SARDAR MUHAMMAD ASLAM, J.- The respondent filed a suit for possession through pre-emption in respect of the land fully detailed in the head-note of the plaint. The petitioner entered appearance and filed his written statement. The issues were framed. Both the parties produced their respective evidence. The suit was decreed on 23.4.1994. An appeal was preferred which ended in dismissal on 26.1.2000. The judgments and decrees of both the Courts below are being assailed through this civil revision.
2. Learned counsel for the petitioner contends that the suit was filed on 16.4.1992 when Section 6(2) of the Punjab Pre-emption Act, 1991 existed on the statute book, compliance of which was a mandatory requirement. He placed reliance on Rab Nawaz v. Mehmood Khan (1993 SCM R 2318) and Muhammad Abbas and 7 others v. Uaqat Ali and 9 others (PLJ 2000 Lah. 1541).
2. Conversely the learned counsel for the respondent controverted the arguments raised by the learned counsel for the petitioner. He urged that no objection was taken by the petitioner in his written statement. No ground was taken by the petitioner in memo, of appeal before the learned Appellate Court. This ground is being taken for the first time in civil revision, which cannot been looked into in the absence of the pleadings on the plaint.
3. I have considered the respective contentions of the learned counsel for the parties and perused the record.
4. Section 6(2) of the 'Punjab Pre-emption Act, 1991 requires pleadings of Zarar and Zaroorat. This provision was held to be un-islamic and repealed from the statute book on 31.12.1993, in view of the dictum of Honourable Supreme Court recorded in Haji Rana Muhammad Shabhir Ahmed Khan v.
Govt, of Punjab Province, Lahore (PLD 1994 SC 1).
5. Paragraph No. 23 of the judgment is instructive and is re-produced below for facility of reference:- "No doubt, the basic philosophy of the law of pre-emption is to avoid Zarar, but is not incumbent upon a plaintiff in the case of preemption to prove the Zarar in each case individually. The traditions of the Holy Property (peace be upon him) on which the right of preemption is based, have never referred to a concept of Zarar, nor did they make it a precondition for the exercise of this right. Instead, the existence of Zarar has been assumed in every case of pre-emption where a plaintiff has fulfilled the basic conditions for the-right of pre-emption; such as making the three Talabs, which will automatically show that he wants to avoid Zarar by his laying the claim of pre- emption. Therefore, the procedure prescribed for the three Talabs is sufficient to establish the right and an additional condition to prove the Zarar, cannot be imposed on a plaintiff in the case of Shuf'ah".
6. The judgments cited by the learned counsel for the petitioner are distinguishable on its own peculiar facts. The view expressed in the esteemed pronouncement is not squarely applicable in the present case for the reason that non-compliance of Section 6(2) of the Punjab Pre-emption Act was not pleaded in the written statement. Neither issues were framed nor the parties were given an opportunity to produce their respective evidence on this count. The grounds being urged in support of civil revision were not taken in appeal before the learned first Appellate Court. This plea cannot be taken at revisional stage for the first time. The parties cannot be allowed to lead evidence in departure to the averment made in the written statement. The petitioner cannot set- up a new case at revisional stage. The concurrent findings of fact on appraisal of evidence has been recorded against the petitioner by the two learned Courts below. No misreading or non- reading of evidence has been pointed out. Interference in civil revision in exercise of jurisdiction under Section 115, CPC is declined.
7. Resultantly, this civil revision having no merit is dismissed.