AKBAR ALI KHAN Versus MUKAMIL SHAH
This revision petition was admitted by the Hon'ble Chief Justice. Peshawar High Court, Peshawar, mainly on the ground that the Hon'ble Supreme Court of Pakistan by its judgment recorded in case Amir Jan and others v. Haji Ghulam Muhammad (PLD 1997 Supreme Court 883) had not approved the judgment of this High Court in case Akbar Nawaz Khan v. Sher Dil Khan and 2 others (1994 MLD 2325).
2. The learned counsel for the petitioner vehemently contended that though the time, place and the date has not been mentioned by him in the plaint regarding the making of "Talb-i-ishhad" but the same have been given, in detail, in the plaintiff's evidence recorded during the trial of the case and, therefore, the trial Court was not justified to have dismissed his suit on the ground that "Talb -i-Muwathibat" was not made in accordance with law.
3. He further submitted that the District Judge also fell in error in not accepting his appeal which prompted him to come to this Court for the redress of his grievance by filing this revision petition.
4. In support of his contention the learned counsel for the petitioner placed reliance on case Amir Jan and others v. Haji Ghulam Muhammad PLD 1997 SC 883 decided by a Division Bench of the Hon'ble Supreme Court of Pakistan consisting of his Lordship Mr, Justice Fazal Elahi Khan and his Lordship Mr. Justice Nasir Aslam Zahid. (PLD 1997'' Supreme Court 883). He, therefore, prayed that this revision petition be accepted and the case be remanded to the trial Court for de novo trial.
5. On the other hand, the learned counsel for the respondents/defendants submitted that the question of "Talb-i-Muwathibat" being a pure question of fact has to be mentioned in the pleadings and that it would not be permissible for the plaintiffs to prove it by producing evidence in this respect without first mentioning it in the plaint. In this respect he placed reliance on case Shah Hussain and 9 others v. Khani Zaman (PLD 1996 Peshawar 73) decided by His Lordship Mr. Justice Sardar Muhammad Raza. This judgment was even upheld by a Division Bench of the Hon'ble Supreme Court of Pakistan comprising of His Lordship Mr. Justice Munawar Ahmad Mirza and his Lordship Mr. Justice Sheikh Ijaz Nisar is case Khani Zaman v. Shah Hussain and others reported as PLD 1998 Supreme Court 121. It was held therein:--
"Admittedly no date of 'Talb-i-Muwathibat' is mentioned in the plaint nor place of acquiring knowledge of transaction is mentioned therein, nor the names of any of the witnesses are given. Admittedly, the transactions pre-empted by the petitioner were distinct and separate but the plaint is silent with regard to making of 'Talb-i-Muwathibat' in respect of each transaction. The-evidence examined by the petitioner about the time of making 'Talb-i-Muwathibat' and 'Talb-i-Ishhad' is in conflict with the case set up by him in the plaint. In the plaint two 'Talbs' are said to have been made on one and the same day whereas the evidence led by the petitioner showed that 'Talb-i-Muwathibat' has been made two days prior to 'Talb-i-Ishhad'. The detail regarding time and place of 'Talb-i-Muwathibat' is an important factor because the period of limitation for 'Talb-i-Ishhad' is calculated therefrom.
6. Having considered the contentions raised by the learned counsel for the petitioner, we are of the view that the petitioner had failed to mention in the plaint necessary details as to the time and place of 'Talb-I- Muwathibat' which was necessary for the calculation of period of limitation for 'Talb-i-Ishhad'. The learned High Court has very ably dealt with this question and the conclusion arrived at by it is based on proper appreciation of law and facts and does not call for any interference. Hence, the petition is dismissed and leave refused. "
6. I am in respectful agreement with the Division Bench of the Hon'ble Supreme Court of Pakistan and am of the view that the petition in hand is without any substance. The same is, therefore, dismissed with no order as to costs.
A.A./182-P Petition dismissed.