MUHAMMAD TARIQ and others vs Mst. SHAMSA TANVEER and others

ORDER

' MIAN SAQIB NISAR, J.---While pre-empting the petitioners' sale of the suit-land, respondent No, 1/plaintiff has succeeded in her cause at the trial stage vide decree dated 13-6-2007. Petitioners' appeal was dismissed by the Additional District Judge on 4-2-2009 and their civil revision before the High Court has been disallowed in limine on 24-4-2009. Hence, this petition for leave to appeal.

2. From the contents of the instant petition, the focal rather exclusive points agitated are, that as the sale mutation was not yet attested in favour of the petitioners when Talb-i-Muwathibat is alleged to have made by the respondent/pre-emptor, therefore, valid Tabs' were not asserted in accordance with the law, thus that suit was incompetently filed and on the above account suit was also premature. In support, the petitioners have relied upon the case reported as Tajul Mulk v. Mst.

Zaitoon Bibi and 3 others PLD 1994 SC 356.

3. Today, Mr. Gul Zarin Kiyani, learned counsel for the petitioners, has primarily argued on the point not raised in the petition by urging that the petitioners had also purchased certain land in the same khata and, therefore, being the co-sharers thereof, the respondent/plaintiff could not validly agitate, exercise and sustain her pre-emptory right against them. When confronted, if this has been the defence of the petitioners in the written statement, though he has made an abortive attempt to say so, however, on examination of the document, we are not satisfied if it was expressly or by necessarily implication mentioned therein that the petitioners are the co-sharers in the khata on account of any purchase and as such no right of pre-emption could be exercised against them by the plaintiff. It may be pertinent to mention here that no documentary evidence has been brought on the record by the petitioners even to substantiate the plea now raised, besides even in the statement of their witnesses, such assertion has not been made, even no suggestion has been put to the respondent's witnesses in the cross examination to the above effect. Moreover, in the memo. Of appeal filed by the petitioners to challenge the decree of the trial court passed against them such a plea is not set out as a ground of attack, this is also true for the revision petition before the High Court. It may be relevant to mention here that as per the judgment of appellate Court, issue No,3 pertaining to the superior right of pre-emption, which according to Mr. Kiyani was comprehensive enough to cover the stated plea as well, was not pressed by the petitioners; and no challenge has been thrown to it by the petitioners in civil revision or even in the present petition, meaning thereby that the right of pre-emption of the respondent was duly admitted by the petitioners which under the law cannot be disputed at this stage. We are not convinced that only for the reasons that a Jammahbandi has been brought on the record by the respondent/plaintiff from which it may be gathered that the petitioners were the co-sharers in the Khata and this should be sufficient to defeat and frustrate respondent's right of preemption now. It is settled law that in civil litigation, a party thereto has to set out its/his case in the pleadings especially which relates to the facts and in the absence thereof no plea can be allowed to be raised, agitated and set forth at a later stage, as such shall be beyond the scope thereto and impermissible as per the law; this case is an apt example of the said IA principles.

4. Though an application has been moved by the petitioners to produce some additional evidence such a copy of the mutation in their favour and it has been argued that the apex Court in exercise of its jurisdiction to do complete justice can allow a party to produce the additional documents/evidence before it and may decide the matter on the basis thereof; reliance having been placed to the judgments reported as Muhammad Hanif and another v. Sultan 1994 SCM R 279; Syed Phul Shah v. Muhammad Hussain and 10 others PLD 1991 SC 1051; Khurshid Ali and 6 others v.

Shah Nazar PLD 1992 SC 822 and Zar Wali Shah v. Yousaf Ali Shah and others 1992 SCM R 1778 suffice it to say that on the authority/power of this court to do complete justice and allowing additional evidence there cannot be any cudgel, however, such power should not be exercised as a matter of course to favour a delinquent litigant, rather in genuine cases and obviously those where the foundation of the plea is already there. But we are not convinced, if these precedents can provide any support to the petitioners in the instant case, because the principles laid therein are relevant to the facts of those cases and not to the one in hand, especially when at the very outset the noted plea was not a part of the defence; no effort at any stage was made to seek amendment of the written statement, rather to the contrary the issue of superior right of the respondent was conceded before the appellate Court and it was not agitated in revisional jurisdiction of the High Court. It may also be stated that additional evidence can only be allowed by the Court when it is in consonance with, and within the scope of the pleading of the parties and not otherwise, but as mentioned earlier the plea till date is not part of the defence of the petitioner in written statement.

5. Be that as it may throughout it has been the case of the petitioners that the suit of the respondent is premature and that the `Talb' has been made before the mutation was sanctioned which is not in accordance with law, this stance is quite clear from the perusal of the instant petition itself, what to say about the lack of defence in the written statement, the memo. of appeal and the averments of the revision petition. Anyhow, we are not persuaded to take a different view of the above, other than the Courts below because even according to the learned counsel for the petitioners, who himself while arguing the first point, on a court query has relied upon the case reported as Muhammad Amin Khan v. Mst. Parveen Ramzan and others 1999 SCJ 450 to submit that the sale shall be deemed to have been complete on the day it was affected and the parties in acknowledgment thereof made statements before the revenue official and not on the date on which the mutation in the revenue record was entered/sanctioned. Moreover, according to the judgment reported as Zulfiqar and others v. Shandat Khan PLD 2007 SC 582 it has been held that as per the definition of the 'Sale' given in the Pre-emption Law, the sale shall come into existence on the payment of the sale and transfer of possession. The learned counsel has failed to show us from the evidence already on the record that prior to the making of `Talbs' by the plaintiff and/or filing of the suit these two conditions were lacking.

6. In the light of what has been stated above, we do not find any merit in this petition which is hereby dismissed by refusing the leave to appeal. C.M.As. Are accordingly dismissed.