Mst. LALAN BIBI and others Versus MUHAMMAD KHAN

CH. IJAZ AHMED, J.--- We intend to decide the captioned petitions by one consolidated judgment having similar facts and law arising out of the common impugned judgment and decree of the High Court dated 18-5-2004. The necessary facts out of which the aforesaid petitions arise are that Muhammad Khan filed suit for possession through pre-emption against Ghulam Ali in the Court of Senior Civil Judge, Chakwal on 13-9-1994. The contents of the plaint reveal that Ghulam Ali predecessor of defendants Nos.1-A to 1-B (Mst. Lalan Bibi and Noor Khan) purchased the land in question from Khuda Dad Khan son of Nawab Khan vide Mutation No.1930, dated 18-8-1994 for Rs.2,50,000 the contents of the plaint further reveal that in order to defeat the right of pre-emptor, fictitious sale consideration of Rs.6,50,000 mentioned in the mutation. Ghulam Ali died during pendency of the suit and his legal heirs Lalan Bibi and others brought on record. The contents of the plaint further show that late Muhammad Khan plaintiff came to know about the sale on 2-9-1994. He at once pronounced that he will pre-empt the sale and thereafter he sent a written notice to Ghulam Ali by post on 5-9-1994 and written notice was attested by two witnesses namely Hayat Muhammad and Muhammad Iqbal. The contents of plaint further reveal' that plaintiff Muhammad Khan has got superior right of pre-emption on the following grounds:--

(1) Co-sharer. (2) Owner of adjacent land.

Defendants in the suit filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed 10 issues. After recording the evidence of the parties, the trial Court decreed the suit vide judgment and decree, dated 4-5-1998 subject to the payment of Rs.4,69,950. The plaintiff was directed to deposit the said amount after deducting Zar-e-Soem already deposited in the Court within one month failing which his suit shall stand dismissed. Plaintiff has complied with the directions of the trial Court and deposited the said amount on 23-5-1998. The defendants in the suit namely Mst. Lalan Bibi etc. being aggrieved filed appeal in the Court of District Judge, Chakwal on 9-6-1998 who dismissed the same vide judgment and decree, dated 21-12-1998. Mst. Lalan Bibi etc./defendants filed Civil Revision No.181-R of 1999 in the Lahore High Court Rawalpindi Bench. The learned High Court had dismissed the revision to the extent of decreeing the suit by the trial Court but the learned High Court has determined the sale consideration to be Rs.6,50,000 in terms of the contents of sale mutation in question. Respondent/plaintiff was directed to deposit payment of Rs.7,15,650 after deducting the Zare Soem already deposited in the Court within one month failing which his suit shall stand dismissed. Legal heirs of original plaintiff late Muhammad Khan filed Review Application on 2-7-2004 before the High Court which was dismissed vide order, dated 8-11-2004, therefore, they have filed C.P. No.2712 of 2004 with regard to enhancement of sale consideration whereas legal heirs of defendants Ghulam Ali namely Mst. Lalan Bibi and others filed C.P. No.1477 of 2004 before this Court.

2. Learned counsel of the petitioner in C.P. No.1477 of 2004 submits that all the Courts below have erred in law to decree the suit of the respondent without adverting to the contents of the plaint as the respondent/plaintiff did not mention date, time and place in the contents of the plaint. He further maintains that all the Courts below have decided the case against the petitioners by misreading and non-reading of the record. He further maintains that respondent/plaintiff has failed to prove making of Talbs in accordance with the provisions of Pre-emption Act. He further maintains that respondent/plaintiff has filed suit himself and not through his attorney as is evident from the title of the plaint. He further maintains that respondent/plaintiff did not appear in witness-box to prove the contents of the plaint. According to him first Talb was made by him on 2-9-1994 and the second Talb was made by him on 5-9-1994. He further submits that respondent/plaintiff has executed special power of attorney in favour of Ghulam Hassan on 12-9-1994 as is evident from the Exh.P.1 (page 45 of paper book of C.P. No.1477 of 2004). He further maintains that all the Courts below have erred in law to decree the suit of the respondent by believing the statement of Ghulam Hassan special attorney. He further maintains that all the Courts below have decided the case against the petitioners in violation of the mandatory provisions of Pre-emption Act and the law laid down by the superior Courts. In support of his contentions, he relied upon Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309 and Fazal Subhan v. Sahib Jamala PLD 2005 SC 977.

3. The learned counsel for the respondent in this petition submits that petitioners have filed this petition against the dead person as the respondent Muhammad Khan had died on 24-5-2003 and the case was decided by the High Court on 18-10-2004. His L.Rs. have also filed petition against the judgment of the High Court (C.P. 2712, of 2004) before this Court in November, 2004. Present petitioners have engaged the counsel in their petition who has filed power of attorney before this Court on 13-8-2005. Therefore, it was the duty and obligation of the petitioners to bring on record the L.Rs. of respondent Muhammad Khan but the petitioners have not filed any application till date, therefore, petitioners' petition is liable to be dismissed as they filed petition against the dead person. In support of his contention, he relied upon the following judgments:---

(i) Aisha Bibi v. Saghirul Hassan 1985 SCMR 1758, (ii) Shabbir Hussain v. Abdul Raoof 1977 SCMR 287.

The learned counsel for the petitioner in Civil Petition No.2712 submits that respondents filed Civil Revision No.18.1-D of 1999 in the Lahore High Court, Rawalpindi Bench against Muhammad Khan/original plaintiff/predecessor-in-interest of the petitioners. Muhammad Khan died on 24-5-2003. The revision petition was decided on 18-5-2004 wherein the revision petition of the respondent was dismissed to the extent of decreeing the suit but the learned High Court had increased the sale consideration in terms of the sale mutation subject to payment of Rs.7,15,650 after deducting of Zar-e-Soem already deposited in the Court within one month failing which his suit shall stand dismissed. The petitioners did not know qua the pendency of the said revision petition. Petitioners filed review petition in the Lahore High Court for reviewing the judgment dated 18-5-2004 and also prayed for extension of time to deposit the sale consideration in terms of the judgment of the High Court dated 18-5-2004. The learned High Court erred in law to dismiss the review petition vide judgment, dated 8-11-2004. The learned counsel for the petitioners submits that petitioners could not deposit the sale consideration in terms of judgment, dated 18-5-2004 on account of lack of knowledge of the direction passed by the learned High Court in the judgment dated 18-5-2004. The learned High Court has erred in law not to extend the time for depositing the sale consideration. The judgment of the learned High Court in review petition is result of misreading and non-reading of the record and in violation of the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:--

(i) Shah Wali v. Ghulam Din alias Gaman and' another PLD 1966 SC 983, (ii) Muhammad Nawaz v. Muhammad Sadiq 1995 SCMR 105, (iii) Gul Muhammad v. Mataa Muhammad 2004 SCMR 1600, (iv) Niaz Muhammad Mann v. Muhammad Ahmad 1988 SCMR 1016, (v) Gul Usman v. Ahmero 2000 SCMR 866.

He further maintains that trial Court decreed the suit in favour of the predecessor-in-interest of the petitioners on 14-5-1998 with the direction to deposit the sale consideration within one month. Predecessor-in- interest of the petitioners has complied with the direction by depositing the sale consideration on 23-5-1998. The respondents filed appeal before the First Appellate Court on 9-6-1998. Therefore, learned High Court has erred in law not to extend the time to the petitioners to deposit the sale consideration in violation of the Order XX, rule 14, C.P.C. predecessor-in-interest of the petitioners has become owner of the property in question after depositing the sale consideration on 23-5-1998 and this fact was not considered by the learned High Court in its true perspective.

4. The learned counsel for the respondents in this petition submits that suit was filed by the predecessor-in-interest of the petitioners himself and not through his attorney, therefore, it was the duty and obligation of the petitioners to file application before the High Court to bring on record the legal heirs of the original plaintiff late Muhammad Khan. He further submits that revision petition has not abated in view of Law Reforms Ordinance, 1972 in view of Order XXII, rifle 4, C.P.C. In support of his contentions, he relied upon Province of Punjab v. Gul Muhammad Khan 1988 MLD 2110. He further maintains that petitioners have not deposited the sale consideration within one month even after their knowledge about the direction of the High Court in terms of the judgment dated 18-5-2004 as evident from para.5 of the order, dated 8-11-2004 passed by the Lahore High Court in their review petition. He further maintains that order of the Lahore High Court is in consonance with the law laid down by this Court. In support of his contention, he relied upon Shujat Ali v. Muhammad Riasat PLD 2006 SC 140, Nawab Khan v. Fazalur Rahman 1976 SCMR 502, Maqbool Ahmed v. Muhammad Rafiq 1998 SCMR 112 and Allah Wasaya v. Irshad Ahmad 1992 SCMR 2184.

5. We have considered the submissions made by learned counsel for the parties and have also perused the record. It is an admitted fact that Mst. Lalan Bibi and 7 others have filed C.P. 1477 of 2004 against the judgment of the Lahore High Court dated 18-5-20.04 wherein the revision petition of the petitioners was dismissed to the extent of decreeing the suit in favour of the respondents. The petitioners have filed the petition before this Court in June, 2004 whereas the respondent in C.P. 1477 of 2004 filed review petition before the High Court on 2-7-2004 which was dismissed by the learned High Court vide order, dated 8-11-2004, therefore, at the time of filing the petition before this Court by Mst. Lalan Bibi and others, it was not in their knowledge that Muhammad Khan has died. Li this view of the matter, preliminary objection raised by the learned counsel for the respondent has no force on the well known principle that nobody is allowed to take benefit of his own misdeeds. In fact, predecessor-in-interest of the respondent has not filed any application for their impleadment. It is settled law that the application of section 141, C.P.C. is not only confined to the' proceedings which are original and are in para materia with the suit but are also applicable to the proceedings which spring out of a suit, therefore, provisions of Order XXII, rule 4, C.P.C. are applicable to the proceedings arising out of revision petition. See Faqir Alam v. Ajab Khan 1986 CLC 1320, Municipal Committee, Jhelum v. Muhammad Shall 1971 SCMR 740, Muhammad Hassan v. Abdul Ghani PLD 1993 Kar. 623 and Muhammad Rafique v. Rashida Begum 1979 CLC 823. It is also settled law that defendant is under obligation to file list of legal representatives along with his written statement and to nominate a person to intimate Court fact of death of defendant and to furnish Court with necessary particulars and addresses of his legal representatives and also to make application for their substitution in view of Order VIII, rule 13, C.P.C. It is settled law that non-compliance of said order would authorize Court to proceed with suit notwithstanding death of such defendant. It is admitted fact that legal heirs of respondent in C.P. No.1477 of 2004 have also filed C.P. No.2712 of 2004 before this Court, we have heard them, therefore, no prejudice has caused to them even otherwise it is bona fide mistake. In view, of the facts of the case in hand, legal representatives of dead party/respondent are not impleaded in petition, the same would not be fatal to the proceedings in the present petition. See Mst. Sakina Bibi v. Muhammad Nawaz 2000 SCMR 1051 and Nazir Ahmad Khan v. Muhammad Shaukat Khan 1999 MLD 1193. Its is a settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213. The judgments cited by the learned counsel for the respondent are distinguished on facts and circumstances of the case in hand. It is pertinent to mention here that all the Courts below had decreed the suit of the respondent in spite of the fact that respondent had not mentioned date time and place in the plaint. This Court had given various divergent views of the said proposition of law as observed by this Court in paragraphs 4 and 5 of judgment, dated 5--12-2006 in C.P. 1429 of 2004 and observed as under:--

"In view of the divergent view by different Honourable Benches of this Court consisting of five and three Honourable Judges, the case be placed before the Honourable Chief Justice of Pakistan for consideration to constitute a larger bench in any other appropriate case to resolve the controversy if the Honourable Chief Justice deems it fit."

The Larger Bench was constituted by the Honourable Chief Justice of Pakistan to examine the following questions:---

"(i) Whether it is mandatory to disclose the particulars and details of the date, time and place of receiving information about sale and making of Talb-i-Muwathibat, and also the names of the witnesses in whose presence this Talb was made in the plaint in a suit for possession by way of pre-emption?

(ii) Whether in the instant case, the High Court was legally competent and justified to set aside the concurrent findings of fact recorded by the appellate and trial Court to the effect that the requirements of Talb-i-Muwathibat had been duly fulfilled' before the suit was instituted?"

The said Bench vide its judgment, dated 12-12-2006 passed in Civil Appeals Nos.1951 of 2000 and 1178 of 2005 laid down following principle:--

"Wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-i-Muwathibat. Therefore, we endorse the view taken in these judgments and approve that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit."

It is also an admitted fact that the plaintiff Muhammad Khan has filed suit in his personal capacity and not through his attorney as evident from the title of the plaint which is reproduced hereunder:--

Plaintiff has made first Talb on 2-9-1994 and second Talb was made on 5-9-1994. Ghulam Hassan was appointed by the plaintiff as his attorney on 12-9-1994. It is an admitted fact that plaintiff late Muhammad Khan did not appear before the trial Court, therefore, making of Talbs in terms of section 13 was not proved and this fact was not considered by all the Courts below in its true perspective. Judgments of all the Courts below are not in consonance with the law laid down by this Court in Mst. Salma Bibi's case 1996 SCMR 1067. The aforesaid proposition of law is also supported by the following judgments:

(i) Salma Bibi's case 1996 CLC 623, (ii) Mst. Wazeeran's case 1996 CLC 682.

The trial Court has decided the case in violation of the dictum laid down by the superior Courts in the aforesaid judgments, therefore, trial Court has committed material irregularity. See Kanwal Nain's case PLD 1983 SC 53, Oil and Gas Development Corporation's case PLD 1970 Kar. 332 and Muhammad Hashim's case PLD 1971 SC 793. The First Appellate Court has also committed the same mistake which were not rectified by the learned High Court in the impugned judgment. The conclusions arrived at by all the Courts below that pre-emptor complied with the requirement of Talbs are erroneous, therefore, it was the duty and obligation of the learned High Court to exercise its revisional jurisdiction. See Hakim Muhammad Buta's case PLD 1985 SC 153. We are perfectly conscious that as ultimate Court in the land, the Supreme Court, as a rule, should give due weight and consideration to the opinions of the Courts below. This Court normally, does not interfere with the findings of fact reached by the Courts below when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. In the instant case, however, it is difficult to avoid the impression that the conclusions reached by the High Court and the Courts below suffer from serious errors of law and fact, which unless set right are likely to result in miscarriage of justice. We have also referred to misreading and non-reading of the evidence on record hereinabove.

6. For what has been discussed above, these petitions are converted into appeals. Civil Appeal arising out of C.P. No.1477 of 2004 is allowed and the judgment of the learned High Court dated 18-5-2004 as well as judgments of First Appellate Court and the trial Court are set aside. Consequently, the suit of the respondent is dismissed. Civil Appeal arising out of C.P. No.2712 of 2004 is dismissed. No order as to costs.

M.H./L-10/SC Appeal allowed.