Through this civil revision, petitioner has called in question judgment and decree dated 28.8.2003 passed by the learned Addl. District Judge, Faisalabad, whereby reversing the judgment and decree dated 13.7.2002 of the learned Civil Judge, Faisalabad, appeal of the respondents was accepted and their suit for possession through pre-emption was decreed.
2. On the request of the learned counsel for the parties, this civil revision has been taken-up for decision, although only C.Ms were listed today for hearing of this Court. The request of the learned counsel for the parties was acceded to because the decision of C.Ms would have taken almost an equal amount of time as decision of the present civil revision.
3. In order to pre-empt the sale transaction, the respondents filed their suit for possession through pre-emption. This suit was dismissed by the learned Civil Judge through judgment and decree dated 13.7.2002. The respondent pre-emptors thus filed an appeal thereagainst. In appeal, the learned Addl. District Judge adopted view on the service of notice of Talab-eIshhad different from that of the learned Civil Judge. As a result, the learned Addl. District Judge accepted the appeal of the respondents and reversed the findings of the learned Civil Judge on the relevant issues. The learned Addl. District Judge further proceeded to decree the suit of the respondent pre-emtpors.
Against the above said judgment and decree of the learned Addl. District Judge, petitioner has filed the present civil revision. In support thereof, the learned counsel for the petitioner has raised the following two contentions:--
(i) That under Section 13(3) of the Punjab Pre-emption Act, 1991, respondent pre-emptors admittedly failed to send the purported notice of Talab-e-Ishhad through registered A.D mail by transmitting ordinary registered letters without an acknowledgement due memo; (ii)The respondents produced on record Ex. P-3 i,e, notice of Talab-e-Ishhad which document was infact a photo copy and was exhibited under objection of the petitioner. And that no secondary evidence to prove execution of notice of Talab-e-Ishhad was produced by the respondents because photo copy was inadmissible in evidence.
The learned counsel for the respondents, however, supported the impugned judgment and decree.
4. I have considered the submissions of the learned counsel for the parties and have also examined the record relied upon by the learned counsel for the parties and attached herewith.
5. I have no doubt in my mind that the mandatory requirement of sending notice of Talab-e- Ishhad in terms of Section 13(3) of the Punjab Preemption Act, 1991 was technically not compiled with as respondents sent the said notice through an ordinary registered mail letter without a memo of acknowledgement due. This was so stated by PW-1 and PW-2 (the relevant Postmaster and the Postman).
6. In the present case however non-compliance with this technicality was adequately met by the respondent pre-emptors by producing the witnesses i,e, PW-1 Muhammad Aslam Bhatti, Postmaster of Chak No, 102 and PW-2 i,e, Altaf Hussain, Postman Burjmandi, Faisalabad. Their depositions are pertinent on the subject. P.W-1 categorically stated that the postal receipt (Ex. P-1) of registered mail letter was issued by him. He also endorsed the postal receipt (Ex. P-1) from the record. He verified correctness of the receipt and also admitted his signatures thereupon. He further stated that as per record, the registry numbers were in accord with the said receipt (Ex. P-1).
He also deposed that he had brought the R.P. Register according to which, the relevant registered letter dated 16.5.1998 was delivered to the addressee. It was, however, in the cross-examination that he admitted that it was an ordinary registered mail letter and was without acknowledgement due memo. Similarly, PW-2 Altaf Hussain, postman deposed that the relevant registered mail letters were delivered to the addresses who also signed the receipt thereof accompanying the ordinary registered mail letters. And that the said receipt was also signed by him. He further stated that the record after checking was duly signed by the postmaster as well. This witness also admitted absence of acknowledgement due memo.
7. The purpose of the mandate of law as prescribed in Section 13(3) of the Punjab Pre-emption Act, 1991 to send the notice of Talab-e-Ishaad through registered acknowledgement mail mode is evident. This mode has been prescribed to avoid a controversy between the parties regarding receipt or non-receipt of such a notice. In case of delivery of such a letter, acknowledgement due is normally signed by the addressee who in his own wisdom could also refuse to receive such a letter and could also refuse to sign the acknowledgement due. In case of such refusal, the registered mail letter alongwith acknowledgment memo is sent back to the addressor. In such eventuality, the pre-emptor in order to prove the transmission of notice of Talab-e-Ishaad and refusal of addressee, has to tender in evidence the refused envelop etc. as well as the record of the post office thereto.
8. Hypothetically but not essentially, an ordinary registered mail letter without an A.D. can at maximum be stretched to equate with the refusal of the vendee/addressee to receive a registered mail letter. If so, through evidence of PW-1 and PW-2 and the post office record, respondents have successfully proved receipt of registered mail letter/envelop by the petitioner vendee. The object of law has thus materially and substantially been fulfilled. Insistence of the learned counsel for the petitioner merely upon the form of mode of transmission would obviously defeat the actual spirit and purpose of the law when transmission itself has ceased to be a disputed issue. The mode of mail prescribed in Section 13(3) ibid for sending the notice of Talab-e-Ishaad through registered mail A.D. is actually to create a reliable evidence of sending the notice, its receipt or deliberate refusal by the addressee/vendee.
9. In the present case. reliable evidence as discussed above was produced by the respondents to prove transmission of notice through registered mail and its receipt by the petitioner. Duly signed acknowledgement memo is an evidence of receipt only. When receipt through ordinary registered mail itself stood duly established, absence of acknowledgement due memo at the time of registered mail became insignificant though not irrelevant in view of the mandate contained in Section 13(3) ibid. Under peculiar 'circumstances of this case, vested right of the respondent pre- emptor cannot be abridged for mere absence of A.D. memo with registered mail letter. The powers of revision can only be exercised in case of excess of jurisdiction or upon commission of material irregularity in the impugned order. In the present case, the impugned judgment on this question infact meets the requirements of justice as well as spirit of law.
10.Under these circumstances, respondents' right cannot be allowed to be defeated for mere non-transmission of registered mail letter without an acknowledgement due particularly when respondents meticulously proved transmission of the notice through registered mail and its receipt by the petitioner through evidence.
11.After concluding that registered mail envelop containing the notice of Talab-e-Ishaad was duly delivered to the petitioner, the learned Addl. District Judge was justified in presuming that the original notice of Talab-e-Ishaad was in the envelop delivered to the petitioner. As such, under the above circumstances, respondents submitted a photo copy of notice (Ex. P-3) in evidence. A photo copy though is inadmissible in evidence, but in the present case, the litigated question as raised by the petitioner in preliminary objection 2 and para 3 of the written statement was that he had not received any notice of Talab-e-Ishaad." The petitioner had in the written statement also generally and baldly asserted non-compliance of Talabs by the respondents. Law is well settled that an evasive denial in the written statement does not amount to a specific denial and can even be interpreted as an admission of contents of the plaint: The parties have to adhere and bind themselves to the specific pleadings raised by them. The petitioner had specified his limited ground that he had not received any notice of Talab-eIshaad. This plea was belied through evidence and it was proved that petitioner had received registered mail envelop which under the circumstances was an adequate proof of receipt of notice. The petitioner had not pleaded that registered mail envelop received by him did not contain any original notice of Talab-e-Ishaad or was empty. The petitioner cannot be allowed to argue a case not pleaded by him in his written statement. Under these circumstances, the contention of non-production of original notice of Talab-e-Ishaad or its secondary evidence by the respondents, cannot reinforce the case of the petitioner.
12.In view thereof, I do not find any merit in the present civil revision which is dismissed with no order as to costs.