GHULAM ABBAS Versus MANZOOR AHMED

Through this civil revision, petitioner has called in question judgment and decree dated 28-8-2003 passed by the learned Additional 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 there against. In appeal, the learned Additional District Judge adopted view on the service of notice of Talb-e-Ishhad different from that of the learned Civil Judge. As a result, the learned Additional District Judge accepted the appeal of the respondents and reversed the findings of the learned Civil Judge on the relevant issues. The learned Additional District Judge further proceeded to decree the suit of. the respondent pre-emptors. Against the above said judgment and decree of the learned Additional 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 Talb-e-Ishhad through registered A.D. mail by transmitting ordinary registered letters without an acknowledg ment due memo.;

(ii) The respondents produced on record Exh.P-3 i.e. notice of Talb-e Ishhad which document was in fact a photocopy and was exhibited under objection of the petitioner. And that no secondary C evidence to prove execution of notice of Talb-e-Ishhad was produced by the respondents because photocopy 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 Talb-e-Ishhad in terms of section 13(3) of the Punjabi Pre-emption Act, 1991 was technically not complied with as respondents sent the said notice through an ordinary registered mail letter without al memo. of acknowledgement due. This was so stated by P.W.1 and P.W.2 (the relevant Postmaster and the Postman).

6. In the present case however non-compliance with this technicality I was adequately met by the respondent pre-emptors by producing the witnesses i.e. P. W.1 Muhammad Aslam Bhatti, Postmaster of Chak No.102 and P.W.2 i.e. Altaf Hussain Postman Burjmandi, Faisalabad. Their depositions are pertinent on the subject. P.W.1 categorically stated. that the postal receipt (Exh.P-1) of registered mail letter was issued by him. He also endorsed the postal ,receipt Exh.P-I 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 (Exh.P-I). 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, P.W.2 .Altaf Hussain, postman deposed that the relevant registered mail letters were delivered to the addressees who also signed the receipt thereof accompanying the ordinary registered mail letters. And that the sated 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)1 of the Punjab Pre-emption Act, 1991 to send the notice of Talb-e-Ishhau 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 acknowledgement memo. is sent back to .the addressor. In such eventuality the pre-emptor in order to prove the transmission of notice of Talb-e-lshhad and refusal of addressee, has to tender in evidence the refused envelope 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 P.W.1 and P.W.2 and the post office record. Respondents have successfully proved receipt of registered mail letter/envelope 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 whet transmission itself has ceased to be a disputed issue. The mode of mail prescribed in section 13(3) ibid for sending the notice of Talb-e-Ishhae through registered mail A.D. is actually to create 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 J 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 J 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 IL judgment on this; question in fact 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- envelope containing the notice of Talb-e-Ishhad was duly delivered to the petitioner, the learned Additional District Judge was justified in presuming that the original N notice of Talb-e-Ishhad was in the envelope delivered to the petitioner. As such, under the above circumstances, respondents submitted a photocopy of notice (Exh.P.3) in evidence. A photocopy 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 the had not received any notice of Talb-e-Ishhad". The petitioner had in the written statement also generally and baldly. asserted non compliance of Talbs 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 P 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 Talb-e-Ishhad. This plea was belatedly through evidence and it was proved that petitioner had received registered , mail envelope which under the circumstances was an adequate proof of receipt of notice. The petitioner had not pleaded that registered mail R envelope received by him did riot contain any original notice of Talb-e Ishhad or was. empty. The petitioner cannot be allowed to argue a case not pleaded by him in his written statement. Under these circumstances, the S contention of non-production of original notice of Talb-e-Ishhad 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.

S.A.K./G-340/L Revision dismissed.