Mst. RASOOLAN BIBI vs KHIZAR HAYAT
This matter concerns a petition for leave to appeal against the concurrent dismissal of a pre-emption suit by the lower courts and the High Court. The petitioner challenged the dismissal, arguing that the courts failed to follow the precedent established in Haji Noor Muhammad v. Abdul Ghani, which suggests a plaintiff should not be non-suited solely for lacunas in the plaint regarding the performance of Talbs. The core legal question was whether the lower courts erred in dismissing the suit due to discrepancies in the evidence led to prove the performance of Talbs, despite the deficiencies in the plaint. The Supreme Court held that while a plaintiff cannot be non-suited merely for defects in the plaint, they must still lead cogent and convincing evidence to prove the performance of Talbs when the plaint is deficient. Finding that the evidence presented was indeed discrepant and unreliable, and noting that the Court does not reappraise evidence under Article 185, the Supreme Court upheld the concurrent findings of the lower courts and refused leave to appeal.
- Can a plaintiff in a pre-emption suit be non-suited solely due to lacunas in the plaint regarding the performance of Talbs?
- Is the Supreme Court of Pakistan empowered to reappraise evidence in a petition filed under Article 185 of the Constitution of Pakistan 1973?
- What is the evidentiary burden on a plaintiff in a pre-emption suit when the plaint fails to disclose the date, time, and witnesses of the performance of Talb-i-Muwathibat?
- Article 185, Constitution of Pakistan 1973
ORDER
TASSADUQ HUSSAIN JILLANI, J.--- Petitioner's suit for pre-emption has been dismissed by the two Courts below i.e, learned Court of appeal and also by High Court on the ground that the A evidence led to prove Talbs, was discrepant and, therefore, not worthy of credit.
2. Petitioner's learned counsel impugns the judgments and decrees on the ground that both the Courts have failed to take note of the law declared by this Court in Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329 and has disbelieved evidence for the reasons not sustainable in law.
3. We have considered the submissions made and gone through the impugned judgment as also the judgment of this Court which is being relied upon by petitioner's learned counsel.
4. In the afore referred judgment of this Court, the ratio laid down was that the plaintiff in a suit for pre-emption cannot be non-suited merely for lacunas in the plaint qua the performance of Talbs.
The Court must examine the evidence led by him to prove Talbs. In the instant case, admittedly, the plaint does not disclose the date, time and the witnesses before whom Talb-i-Muwathibat was made. With this deficiency in the plaint, it was imperative for the plaintiff to lead cogent and convincing evidence to prove performance of Talbs. A bare reading of the evidence led in this behalf indicates that the same was discrepant and not worthy of credit. The Court seized of a petition under Article 185, would not reappraise the evidence.
5. In the afore referred circumstances, we find the concurrent judgments to be unexceptionable.
This petition lacking in merits accordingly, dismissed and leave refused.
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