ABDUL QAYYUM KHAN vs MUSA KHAN and 5 others

' SARDAR MUHAMMAD RAZA KHAN, J.---Abdul Qayyum son of Rab Nawaz Khan of Ranazai Kulachi had filed a pre-emption suit against Musa Khan etc. The contested suit was ripe for arguments when the learned Civil Judge, D.I. Khan suo motu framed an additional issue on 11-4-1990 regarding Talb-e-Muwathibar and Talb-e-Ishhad' etc. Before that an application for additional evidence filed on 29-10-1989 was rejected by the trail Court on 8-11-1989.

2. The order dated 11-4-1990 regarding the framing of additional issue was challenged which came before the learned Additional District Judge, D.I. Khan who vide his judgment dated 9-12-1990 set aside the same and directed that the case may be decided on merits. The defendants challenged the same before High Court on 2-2-1991 which was rejected on 28-11-1992 and hence this writ petition filed on 13-3-1993. The order dated 11-4-1990 of the trial Court was not appealable and hence the learned Additional District Judge would be deemed to have decided it as revision on which the second revision was not competent and hence rightly held so. If such litigation is brushed aside as violative of section 115, C.P.C., the instant writ petition on 13-3-1993 suffers from serious defect of laches.

3. The case in brief of the petitioner/pre-emptor is that an issue regarding Talabs' be framed and he be allowed to adduce evidence thereon because at the initial stage it was wrongly omitted to have been so framed. All the assertions and counter-assertions are bound to be examined in the light of the pleadings of the parties because every issue is either framed or not framed, only in the light of the pleadings.

4. Para. 3 of the plaint is important in this behalf which alleges of the issuance of notices directly to the defendant-vendee which was denied in the written statement and hence a clear issue already stands framed to that effect. So far as Talb-e-Muwathibat' and Talb-e-Ishhad' are concerned, it is a pure question of fact which is bound to be alleged by the plaintiff in the plaint with specific reference to the day, time and place of making the declaration which, by now has become to be also interpreted as jumping demand. This is simply necessary because the plaintiff would subsequently be bound to prove it accordingly and to keep him confined to the factum of time and space. This is also necessary from another legal as well as factual aspect to the effect that keeping in view the time and place of Talb-e-Muwathibat', the limitation for Talb-e-Ishhad' would be computed and the time shall start running against the prospective pre-emptor.

5. Keeping in view all such necessary requirements of law as well as fact, if one reverts to the plaint of the present petitioner-pre-emptor, he has not mentioned even a single word regarding Talb-e- Muwathibar or regarding Talb-e-Ishhad', at all. He has not mentioned as to when he got information about sale, as to where it was and if in whose presence he made the compulsorily required declaration without which even the right of pre-emption does not happen to come into existence. In the absence of all these factual allegations in the plaint we are afraid as to what the issue shall be framed about. This serious omission was done by the pre-emptor in a suit filed on 14- 9-1987 when the newly-enacted law of pre-emption was enforced on 28-4-1987.

6. The additional issue in question happens to be framed as a result of such allegations which do not practically exist in the plaint and hence could not be reduced into issue. It really amounts to the leading of additional evidence qua a subject which was never raised and the production of which additional evidence had already been denied on 8-11-1989 without having been challenged further.

7. In the circumstances mentioned above, we are of the considered view that the learned Additional District Judge had rightly disallowed the framing of additional issue qua `Talb-e- Muwathibat' and `Talb-e-Ishhad' etc. Which were not, at all, alleged in the plaint. The writ petition is hereby dismissed. Parties are directed to appear before the learned Senior Civil Judge, D.I. Khan on 18-12-1994, where arguments on merit shall be addressed.