MUHAMMAD NASEEM Versus IJAZ AHMED

AMIN-UD-DIN KHAN, J.--- Through this single judgment I intend to decide the above captioned civil revision as well as Civil Revision No.182 of 2011 and Writ Petition No.1294 of 2011, as all these cases have arisen from the proceedings of one suit, wherein common questions of law and facts are involved in all these petitions.

2. Through Civil Revision No.3818 of 2010 the petitioners have impugned the judgment and decree dated 14.07.2010 passed by learned Additional District Judge, Gojra, whereby the appeal filed by them with some modification in the judgment and decree of trial court was dismissed. The petitioners have also assailed the judgment and decree dated 18.02.2010 passed by learned Civil Judge 1st Class, Gojra, whereby the suit for pre-emption filed by the respondent-plaintiff was decreed.

3. Briefly, the facts of this case are that on 19.03.2007 the respondent-plaintiff filed a suit to pre-empt the sale of land measuring 18-kanals, 09-marlas purchased by the defendants-petitioners through registered sale deed No.640 attested on 05.03.2007. The case of respondent-plaintiff as pleaded in the plaint is that the defendants purchased suit land for a consideration of Rs.750000/-, whereas fictitiously it has been mentioned in the sale deed as Rs.1450000/-. The plaintiff has pleaded that all the three rights of pre-emption are available with him and the defendants have no right against the rights of plaintiff. It has been pleaded that on 06.03.2007 at about 7:00 p.m. plaintiff was sitting in the `Baithak' of Mukhtar Ali son of Nathoo, his father, with Haji Mukhtar Ali, Ihsan-ul-Haq son of Muhammad Ali, Muhammad Aslam son of Muhammad Ali, the residents of village, when Muhammad Aslam son of Sadiq Ali came there and told about the sale of suit land where the plaintiff forthwith announced his right to pre-empt the sale.

The written statement was filed wherein the suit was contested. It was pleaded that the seller of property offered the plaintiff to purchase the same. The plaintiff was not ready to pay the price offered by the defendants, therefore the story of Talbs is wrong. Learned trial court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence. After the closing of trial, vide judgment and decree dated 18.02.2010 suit was decreed by learned trial court. An appeal was filed by the defendants before the learned first appellate court, which was dismissed vide judgment and decree dated 14.07.2010 with some modification in the judgment and decree of trial court while granting the incidental charges of sale amounting to Rs.58000/- and directed to be paid by the plaintiff within 30 days, failing which the appeal of petitioners-defendants will be deemed to be accepted and suit shall be dismissed with costs. With these modifications the findings of learned trial court on all other issues were confirmed and appeal was dismissed. The vendees- defendants filed Civil Revision No.3818 of 2010.

4. The facts of Writ Petition No.1294 of 2011 are that the respondent-plaintiff on 17.08.2010 moved an application before the Duty Civil Judge, Gojra for granting permission to deposit Rs.58000/- in accordance with judgment and decree dated 14.07.2010 passed by learned Additional District Judge, Gojra, stating therein that learned appellate court while dismissing the appeal on 14.07.2010 has reversed the findings on issue No.8 and ordered the plaintiff to deposit Rs.58000/- as incidental charges within one month. It is mentioned that the applicant moved an application for obtaining certified copy of judgment and decree on 14.07.2010. The copy has been supplied on 17.08.2010 and after receiving the copy he came to know about the deposit of Rs.58000/-, therefore he wants to deposit the same and permission be granted. Learned Duty Civil Judge, Gojra vide order dated 18.08.2010 observed that contention of learned counsel for the petitioner that petitioner got attested copies of judgment and decree dated 14.07.2010 on 17.08.2010, is not established from the record, therefore he has no authority to extend the period and dismissed the application observing that the petitioner may approach the relevant court for extension of time. The plaintiff opted to file revision petition before the learned Additional District Judge, Gojra against the order of dismissal of his application dated 18.08.2010 passed by learned Duty Civil Judge, Gojra. The revision petition was also dismissed observing that the plaintiff should have to move application for extension of time in the court of Additional District Judge.

5. The facts of C.R. No.182 of 2011 are that the plaintiff has filed this Civil Revision with the prayer that the order for deposit of Rs.58000/- as incidental charges while deciding issue No.8 by learned first appellate court be set aside and the judgment and decree dated 18.02.2010 passed by learned trial court may be maintained. This revision was filed on 20.01.2011, certainly after the prescribed period of limitation.

6. First of all, I take Writ Petition No.1294 of 2011. If on the factual side the story mentioned by the plaintiff in his application is admitted to be true, even then for extension of time the plaintiff was required to move the court which has passed the order for deposit of incidental charges but the plaintiff opted to move for extension of time before the learned Duty Civil Judge, who was not having any jurisdiction to extend the time given by the Appellate Court and the time has already expired, therefore the order passed by the learned Civil Judge dated 18.08.2010 while dismissing the application was in accordance with law. The plaintiff instead of approaching the Appellate Court for extension of time opted to file revision petition against the order of learned Civil Judge, which was also dismissed observing that the plaintiff was to move before the proper forum for extension of time. Now the instant writ petition has been filed by the plaintiff.

Learned counsel for writ-petitioner states that even the Revisional Court was competent to consider it as an application for extension of time. I am clear in mind that the argument of learned counsel for writ-petitioner is not having any weight, as the application could have been filed before the court which has ordered for deposit of incidental charges, whereas the Revisional Court was ceased with the powers of revision only against the order passed by learned trial court, therefore the Revisional Court has rightly observed that the plaintiff was required to move for extension of time before the court which has passed the order. Learned counsel while relying upon "2004 SCMR 1600 ( Gul Muhammad and others v. Mataa Muhammad )" argues that the august Supreme Court has granted extension under section 148 as well as under Order XX, Rule 14 of the C.P.C. when a minor amount of incidental charges could not be deposited within specified time. I am clear in my mind that the petitioner cannot take benefit of this judgment, as therein the order was passed by the High Court to whom the prayer for extension of time was made, whereas in this case the plaintiff/decree holder has never applied for extension of time before the court which has passed the decree. The application was filed before the trial court, which was having no jurisdiction to extend the time granted by the Appellate Court and then plaintiff opted to file revision petition instead of moving before the proper forum, therefore writ-petitioner cannot take help from the above said judgment of apex Court. Furthermore, during the pendency of revision petition before the learned Additional District Judge, incidental charges were deposited. Learned counsel states that when the incidental charges were deposited and if there was any defect with regard to deposit of said charges which have been deposited, as such the defect stand cured. I have noticed the order dated 25.08.2010 passed by learned Additional District Judge ceased of the civil revision, wherein it has clearly been mentioned that:

"Subject to the objections of the opposite party and all exceptions, the petitioner is allowed to deposit the amount of incidental charges i.e. Rs.58000/- within two days."

For invoking constitutional jurisdiction it is fundamental principle that the plaintiff must show some jurisdictional defect committed by the courts below. In this case, there is absolutely no jurisdictional defect in the orders passed by both the courts below, rather the courts below have passed the orders in accordance with law. In this view of the matter, this writ petition is not maintainable.

7. Now I come to the Civil Revision No.182 of 2011. Along with this Civil Revision, an application under section 5 of the Limitation Act, 1908 has been filed with the assertions that as the judgment and decree passed by learned Appellate Court is subject matter of Civil Revision No.3818 of 2010, which has been admitted to regular hearing, therefore this civil revision filed by the plaintiff be also considered. Learned counsel has relied upon "1987 SCMR 753 ( Pakistan Television Corporation v. S. Ahtramullah ) and PLD 2008 Supreme Court 591 ( Subedar Sardar Khan through Legal Heirs and others v. Muhammad Idrees through General Attorney and another )". I have gone through the judgment "1987 SCMR 753(sic.)" wherein the question of jurisdiction was raised, therefore delay of 2412 days was condoned but in this case no such question of jurisdiction is involved. I have also gone through the judgment "PLD 2008 Supreme Court 591" which is also distinguishable and not applicable to the facts of this case, as the similar question in civil revision in hand is not under consideration in the other civil revision before this Court. I humbly bow before the judgments of august Supreme Court referred supra but it is observed that these judgments are not applicable to the facts of this case. Now it is settled that the delay for filing of a civil revision cannot be condoned under section 5 of the Limitation Act. Though I have a view that delay can be condoned while exercising jurisdiction under section 115 of the C.P.C. I have noticed that even if the period of obtaining the copies be excluded, even then there is no reason mentioned for condonation of delay except that the other revision petition has been entertained. As section 5 of the Limitation Act, 1908 is not available for condonation of delay in filing civil revision, therefore the application for condonation of delay is not maintainable. The same is dismissed. As such the civil revision also fails.

8. Lastly, I come to Civil Revision No.3818 of 2010. Learned counsel for the petitioners-defendants has mainly argued on the basis that there is a difference in the pleadings as well as statements of witnesses of plaintiff-respondent with regard to place of gaining the knowledge by the plaintiff of impugned sale as well as pronouncing the intention to pre-empt the sale. States that for success in a suit for pre-emption and for the successful performance of Talabs, plaintiff was required to specifically plead the time, date and place of knowledge of impugned sale and also to prove the same; that if any one of all the three specific ingredients for proving the jumping demand is missing, the plaintiff fails. Learned counsel has referred Para 4 of the plaint to state that it is pleaded that the plaintiff was sitting in the `Baithak' of his father, same is mentioned in Ex.P-9, 10 and 11, notices of Talb-e-Ishhad, whereas the plaintiff and witnesses of Talb-e-Muwathibat stated that they were sitting in the `Baithak' of father of plaintiff. However, Muhammad Aslam, informer who appeared as PW-7 stated in his cross-examination that we were sitting on cots in the courtyard of `Haveli', plaintiff and his witnesses Ehsan-ul-Haq and Muhammad Aslam were sitting when I informed. Then a specific question was put to him and he replied that at a distance of 04 feet from the `Baithak' cots were lying. He further stated that the distance between cots and main gate of `Haveli' is 10 feet. Learned counsel states that when the Informer who is the most important witness stated the different places from the place of knowledge pleaded by the plaintiff and stated by the plaintiff and his witnesses, therefore Talb-e Muwathibat has not been pleaded and proved in accordance with law. Learned counsel for the respondent-plaintiff states that it is the same place, as Baithak and the courtyard are the same places, therefore this point is not considerable.

9. Learned first appellate court has interpreted the `Baithak' as the place of sitting. I am of the view that this interpretation is not in accordance with the evidence led by the plaintiff himself, as the pleadings and statements of plaintiff and his witnesses except PW-7 clearly show that Baithak' means a room of sitting, whereas PW-7 clearly states that he informed the plaintiff about the impugned sale in the courtyard of Haveli'. Further there is contradiction in the place of knowledge and making jumping demand by the plaintiff in the statement of informer, star witness of plaintiff, which contradicts the statement of all other witnesses as well as pleading of plaintiff. In this view of the matter, plaintiff failed to prove Talb-e- Muwathibat. Even otherwise, when the order of first appellate court to the extent of deposit of Rs.58000/- of incidental charges have not been complied with within one month, therefore automatically the appeal filed by the vendees-defendants stood accepted. Even otherwise the stand taken by the plaintiff in his writ petition discussed above as well as revision filed by him wherein he has challenged the order of deposit of incidental charges, are contradictory one, as writ petition and revision petition filed by the plaintiff stood dismissed through this judgment. The plaintiff failed to prove Talb-e-Muwathibat in accordance with law. Resultantly, this Civil Revision No.3818 of 2010 is accepted and the judgments and decrees passed by both the courts below are also not sustainable on the ground of non-proving of Talb-e-Muwathibat in accordance with law.

10. The crux of above discussion is that Writ Petition No.1294 of 2011 and Civil Revision No.182 of 2011 filed by the respondent-plaintiff shall stand dismissed, whereas Civil Revision No.3818 of 2010 stands accepted.

ZC/M-188/L Revision dismissed.