MUHAMMAD SHUAIB Versus SHARIF KHAN
Through this civil revision petition Muhammad Shoaib Khan has called in question the concurrent judgments and decrees of the learned Zilla Qazi Malakand at Batkhela and the learned Aalla Illaqa Qazi Malakand at Batkhela dated 26-11-1996 and 12-9-1996 respectively.
2. A synoptical sketch of the facts, giving over all view of the controversy is that the petitioner brought a suit for possession of land mentioned in the heading of the plaint through the enforcement of his pre-emptive rights. According to the plaint Sharif Khan purchased the suit-land for a sum of Rs.17,000 without informing the petitioner and the sale was kept secret. The pre-emption was sought to be enforced on twin grounds of Shafi Khaleet' and ' Shafi Jar'. It was also claimed that on gaining knowledge he declared his intention of pre-emption followed by sending a notice of 'Talb-i-Ishhad' to the respondent. The suit was resisted by the respondent and the parties led their respective evidence as they willed. The suit of the petitioner was however dismissed by the learned trial Court who after discussing the evidence came to the conclusion that the petitioner could neither establish the contiguity of his land with the suit property nor the requisite 'Talbaat' were made properly in accordance with law. The appeal filed by the petitioner was also dismissed and the findings and conclusion of the learned trial Court were maintained by the learned Zilla Qazi.
3. The learned counsel for the petitioner has argued that both on the question of contiguity as well as making of demand the findings of the learned Courts are the outcome of misreading and non-reading of the record. He contended that the petitioner had annexed with his plaint the receipt vide which he purchased the contiguous land from Fazal Ghani who is his brother and the said deed which was executed on 19-1-1992 has not been properly appreciated. He further argued that although the petitioner failed to produce the witnesses of the said receipt in the trial Court but during the pendency of appeal the petitioner made an application before the learned Zilla Qazi for obtaining permission to produce the witnesses of the said receipt. He contended that the learned Appellate Court did not decide the said application and delivered the impugned judgment without any reference to the said application of the petitioner and on this score this case requires to be remitted to the Appellate Court for deciding the fate of the application of the petitioner for the purpose of producing the additional evidence.
4. On the point of 'Talbaat' the learned counsel raised two fold contentions, firstly that the petitioner had made the requisite demand i.e. 'Talb-e-Muwathibat' when he declared his intention of enforcing his pre emptive rights on receiving information about the sale an:1 subsequently he transmitted the notice of 'Talb-i-Ishhad' to the respondent: Thus the findings on this point of both the Courts below are incorrect. His second argument on this point was that the N.-W.F.P. Pre-emption Act was not enforced in Malakand area during the relevant days as the same was extended there on 25-9-1994 and as such the petitioner was not required to make the 'Talbaat' in terms of section 13 of the N.-W.F.P. Pre emption Act, 1987. He argued that during the intervening period the matters pertaining to the pre-emptive rights were to be looked into on the touch stone of the Islamic jurisprudence which does not require the sending of notice of 'Talb-i-Ishhad' through postal process.
4a. On the other hand the learned counsel for the respondent has defended the impugned judgments on almost the same grounds that are given in the impugned judgments.
5. I have heard -and considered the, arguments of the learned counsel for the parties in the light of the record and the relevant law. On the first limb of his argument about the contiguity, I may observe that the matter was, in the initial stage, referred to a 'Muslih' namely Muhammad Islam Ajmali. According to his verification the lane mentioned in deed dated 19-1-1992 was contiguous to the suit-land but according to the endorsement made by the 'Muslih' on the application, the purchase of- the contiguous land by the petitioner from his brother Fazal Ghani was subject to proof. The said endorsement is in the following diction:--
6. From the above endorsement it is abundantly clear that the 'Muslih' too was not definite about the purchase of the land from Fazai Ghani by the petitioner nor the witnesses to the sale-deed dated 19-1-1992 were produced before him. This feature of the case clearly spell out that the petitioner was made conscious about the legal necessity of producing the attesting witnesses to the sale-deed. Interestingly none of the attesting witnesses was produced by the petitioner before the trial Court. Thus in absence of the proof of the deed dated 19-1-1992 which also does not appear to have been exhibited, the alleged contiguity of the land of the petitioner was not established.
7. The law on the point of producing the additional Evidence is settled. Order 41 rule 27 postulates about the additional evidence in Appellate Court. It provides that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court except in the situation where the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or where the Appellate Court requires any documents to be produced or, any witness to be examined to enable it to pronounce judgment or for any other substantial cause. In the instant case obviously the petitioner had not asked the trial Court for the production of the witnesses as additional evidence. In the second situation it is up to the Court itself to allow the additional evidence where it feels that the judgment cannot be pronounced without the additional evidence. Thus the gist of this rule is that additional evidence can be allowed only where--
(1) the trial Court has improperly' refused to admit the evidence which ought to have been admitted; or
(2) the Appellate Court requires such documents or witness and cannot pronounce judgment without such additional evidence; or
(3) the Appellate Court requires such .documents for any other substantial cause.
The test is, therefore, whether, the Appellate Court can pronounce judgment without taking into consideration the evidence sought to be produced. The Additional evidence cannot be allowed to allow a party to patch up the weaker parts of its case or fill up omission. In this regard the judgment of the august Supreme Court reported as Bashir Ahmad v. Ahmad-ul-Haq Siddiqui (1985 SCMR 1232) provides the necessary guidance. While dealing with rule 27 of Order 41, C.P.C., it was observed thus:
"Since the petitioner could succeed only if he could establish that he was willing and able to return the amount of Rs.23,000 before 25-1-1973 and that he had, in fact, deposited this amount with Ghulam Nabi before, the said date, the failure to produce him as a witness seriously weakened his case. In. an attempt to repair the damage the petitioner submitted an application before the Appellate Bench under rule 27 of Order XLI, C.P.C. for, permission to produce additional evidence, namely, Ghulam Nabi and Iqrar Ahmad Zaidi. This application was, however, refused and the learned Judges observed in this connection that:
"Rule 27 of Order XLI, C.P.C. does not envisage filling up of the lacunas left by a party in the evidence before the trial Court. Additional evidence under the above rule may be allowed to be recorded if the Appellant Court itself so requires. Additional evidence cannot be allowed in order to-enable a party to patch up the weaker part of its case or to fill up omission or to enable it to raise a new point. It can be allowed only if it is required by the Appellate Court itself on the basis of its own appreciation of the evidence already on record."
On this view of the matter, the learned Judges held that they were not inclined to hold that it was necessary or expedient in this case to allow the petitioner to produce any additional evidence. The application for permission to produce additional evidence was, accordingly, dismissed: " and the petition was dismissed. Similarly in 1973 SCMR 335 the august Supreme Court observed that;
"In the instant case there is nothing to show that the petitioners had applied in the trial Court for the comparison of the thumb -impression of the deceased on the disputed document with his thumb-impression on Exh.D.W.1/1 and D.W.1/2. Having failed to examine the expert evidence in the trial Court, they had no right during the proceedings in the First Appellate Court."
8. In this case the sale-deed on which the petitioner relied was his own document and the necessity of producing the attesting witnesses, besides being the demand of law, was also made apparent by the endorsement of the 'Muslih' as referred above. Thus there was no justification for making any application by the petitioner at the appellate stage soliciting they production of the attesting witnesses. This was obviously an attempt to rectify the infirmity of his case. No doubt that a separate order on the application of the petitioner was not recorded by the learned Zilla Qazi but he had heard the arguments as is evident from the order dated 17-11-1996 and it appears that he was not inclined to accept the said application and the judgment in the main appeal also reflects his mind on the point. It, therefore, follows that the learned Appellate Court did not find itself in a state of inability to pronounce the judgment without recording the additional evidence.
9. With regard to the argument of the learned, counsel on the requisite 'Talbaat' it is sufficient to refer to the notice of 'Talb-i-Ishhad'. In the said notice it is not mentioned as when the petitioner got the knowledge of the sale of suit-land and on which date he made the 'Talb -i-Muwathibat'. The law requires that 'Talb-i-Ishhad' shall be made within two weeks after making of 'Talb-i-Muwathibat' the petitioner cannot establish that he sent the notice of 'Talb-i-Ishhad' within the stipulated period and as such he fails to make 'Talb-i-Ishhad' in accordance with law. Even the notice of 'Talb-i-Ishhad' itself does not contain any date and the learned counsel for the petitioner was confronted with this infirmity. He also agreed that no date is given on the notice. Reverting to the argument of the learned counsel for the petitioner that, during the relevant days the N.-W.F.P. Pre-emption Act was not in-force in the said area, therefore, the petitioner was not required to send the notice of 'Talb-i-Ishhad' in writing through postal process. Even if such argument is received with any favour, again the question would arise that what should be the length of time between the making of 'Talb-i-Muwathibat' and 'Talb-i-Ishhad' because the making of the second demand cannot be deferred for an indefinite period even under the Islamic Law. The learned counsel for the petitioner filed to make out any case about the intervening period between the 'Talb-i- Muwathibat' and 'Talb-i-Ishhad'. The petitioner had also claimed that subsequent to 'Talb-i-Muwathibat' he sent two elders besides the notice to the respondent. These two persons were Haji Feroze and Wali Akbar. Their testimony is examined but they also have not given any date of conveying the message of the petitioner to the respondent which could be considered as compliance of 'Talb-i-Ishhad'. Their statements are also suffering from discrepancies as the learned trial Court has taken note thereof while discussing issue No.2 on page 3 of its judgment. In the circumstances, I do not feel any necessity of remanding this case to the Appellate Court on the point that the learned Zilla Qazi has not recorded any separate order on the application of the petitioner for additional evidence. It would not serve any purpose except the prolongation of the litigation. I am myself convinced that the application of the petitioner for the production of their additional evidence has no merits.
On the facts and circumstances of the case as discussed above, am firm in my view that the concurrent findings of the two Courts below do not suffer from any infirmity so as to warrant interference by this Court udder its revisional jurisdiction. This revision petition is, therefore, dismissed leaving the parties to bear their own costs.
H.B.T /747/P Revision dismissed.