Ms.Mairaj Bibi etc. vs Muhammad Shafique etc.

/ i-*l Blue Slip HJDIC.4l (Revised: un{er Act No. II of 1990)

LAHORE HIGH COURT, LAHORE.

In the Court/Tribunal: Mr. Justice Mirza Viqas Rauf.

Case No. R.S.ANo.88 of 2009

MST. MAIRAJ BIBI. ETC. Versus MUIIAMMAD SHAIIOUE. ETC.

Decided on;

(a)Judgment approved for reporting Yes,&b.

(b)Registrar should see witl reference to the work Or conduct of some judicial officer. &s/i.tro (c) Ifso, a separate confidential note should\ Be sent to him question. Yes.AJo

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.n Stereo.HCJDA 38.

IN THE LAHORE HIGH COT]RT LAHORE

JUDICTAL DEPARTMENT

R.S.A No.88 of 2009

MsT. MAIRAJ BIBI, ETC,

Versus,

MAHAMMAD S HAFI QA E, E TC.

JUDGMENT.

Date of hearing:

Petitioners by: Syed Kaleem Ahmad Khurshid, Advocate

Respondents by: Miss Khawar Naheed; Advocate.

Mirzs Viqas Rauf, J. This regular second appeal arises out ofjudgment and decree dated l't ofJune.2009 handed down by the leamed Additional District Judge, Sheikhupurd, whereby he proceeded to afhrm the judgment and decree dated 12th April, 1986 passed by the ieamed Senior Civil Judge, Sheikhupura, while dismissing Regular First Appeal filed by the appellants.

1 There is a long and chequered history at the back of this appeal, which starts from the institution of suil for pre-emption by the respondents. Suit was instituted on 23'd September, 1979 whereby respondents, while claiming themselves as nephews of Mst. Khurshid Bibi (respondent No.7) canvassed that she soldl out land measuring 94- kanals 7-marlas to Muhammad Hussain (pfedecessor-in-interest of appellants) without any notice to them whereps they have a superior right ofpre-emption. Suit was though contested by the appellants but it was decreed through judgment dated 12'h April; 1986. This followed ari appeal before the learned Additional District Judge, Sheikhpura which ultimately went before the Hon'ble Supreme Court of Pakistan but

finally when it was placed before the leamed Additional District ludge, Sheikhupura in pursuance to remand order, il was decided against the , r .st appellants vide judgment and decree dated i't ofJune, 2009, hence this appeal under Section 100 of the Code of CivJl Procedure (V of 1908) (hereinafter refeired as *CPC").

3.Syed Kaleem Ahmad l(hurshid, Advocate, while questioning the concurrent findings of the Courts below sqbmitted that respondents do not possess any right ofpre-emption. He a{ded that the respondents have badly failed to prove that they are collaterals of the vendor. Learned counsel maintained that pedigree table (Exh.P4) was allowed to be produced in evidence subject to cost but same was not paid. It is argued that in absence ofpayment of cost, pedigree table cannot be read in evidence. Leamed counsel contended that plaint was not accompanying proper Court fee and through a non-speaking order respondents were allowed to rnake up deficiency in Court fee. lt is emphatically argued that on account of contunacy of the respondents to Ievy the proper Court fee, their suit should have been dismissed. Leamed counsel submitted that suit was hit b5' the principle of partial pre-emption. Leamed counsel further submitted that a miscellaneous application under Section 476 of the Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C") was though rnoved by the appeliants but the same' has remained unattended whicli renders the impugned judgment and decrees nullity in the eye of laiv. It is contended with vehemence that there is no legal bar to set at naught the concurrent findings in second appeal when these are suffgring with illegality and material irregularity. Reliance is placed on " MUEARAK AHWD. ETC. v. HASSAN MUHAMMAp" (2002 SCJ r72), :

'FFAT

SHAKOOR and others" (1997 SCMR 919), IOBAL v. MsL FATIMA BIBI and others" (2007 SCMR 494) artd "SHAH NAWAZ AND ANOTHER'f/. NAWAB KHAN'' (?LD 1976 SC 767).

4.Conversely, Ms. I(ashwar Naheed, dvocate submitted that the respondents are the real nephews of the and thev have ablv proved their relationship. It is contended that idence to this effect has gone un-rebutted. Learned counsel, rvhile ing the question of non-payment of cost, submitted that failure to cost was unintentional and same cannot be made basis for the effect of document produced in evidence. She added that de in Court fee was duly mhde as per orders ofthe Court and there is no on the part of respondents to this effect. Leamed counsel that suit was not of partial pre-emption. She maintained that to some inadvertence initially area of one of the khasra number wrongly mentioned, which was rectified through pemission o the Court by way of amendment in the plaint. Leamed counsel went on to argue that concurrent findines do not suffer with anv defect justifying interference. ln order to supplement her co ons. she has relied uoon Erc." Qar3 Psc 1319),:

Q003 CLJ 389) and 'i SHAKUR KHAN AND ANOTHER'' (PLD 1984 Court 289).

5.After having heard leamed I for the parties at considerable length, I have also perused record with their able asslsmnce.

6.Before adverting to the questions hereinabove, it would be advantageous to have a factualbac first. Suit is under old law of prg-emption questioning the sale attested in favour of Muhammad Hussain on 25th September, 19 Suit was instituted on 23'o Septembgr, 1979. Though it was on multiple grounds, including limitation but question of limitation was encaosulated in issue No.3 which was decided in favour of the while holdine that suit is well within time. Findinss of the below to this extent are

unexceptionable, which axe even not questi by the leamed counsel for the appellants.

1 Suit was decreed by the leam d Senior Civil Judge, Sheikhupura vide judgment dated 12th April, 1 86, The appeal preferred by the appellants before the learned itional District Judge, Sheikhupura was accepted vide judgment decree dated 27"'May, l99l and, suit was dismissed. This p the respondents to file R.S.A No.37 of 1991 before this Court. By of judgment dated 6th November, 1997 while accepting the appeal, th judgment of the learned Additionai District Judge was set aside. The lication for production of additional evidence filed bv the he respond was allowed subject to payment ofcosts ofRs.l000f and the case remanded to the learned Additional District Judge with the to record additional evidence of the respondents by way ofl on of copy ofpedigree table in the statement of concemed functionari , whereafter appellants should be allowed to lead evidence in rebuttal. was observed that after recording of additional evidence, the appeal be decided on its own merits and in accordance with law. within months. The appellants feeling aggrieved filed C.P.L.A No.i6l8-L/1 before the honourable Supreme Court of Pakistan which was con into appeal and allowed vide order dated l2'n April, 1999 in the llowing manner: - " Learned counsel for the petitioner es before us that he v,ill have no objeition to the remand of the cas tu the rtl$ appellate Court in case the adverse obseruations having made by the High Court in the impugned judgment/order dated 6.1 1.1 are expunged Learned counsel appearing on behalf of the respondents does not oppose this submission. In this view of the ', the observations on merits recorded by the High Court in remr the mdtter to the frst $ppellste Court shall not influence the of the Court while deciding the controversy. The first appellate Court shall hear and decide the appeal within three montlts without fail. With this observation, by consent, lhis pelilion is converted into and allowed. " In post remand proceedings the leamed onal District Judse proceeded to dismiss the appeal vide and decree dated 29tn November, 1999. The appellants then filed R.S No.01 of 2000 which

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was allowed vide judgment dated 6u May, 5 and matter was asain remanded to the leamed lower Appellate Co for its decision afresh in accordance with law. The appeal was ulti ly decided by way of judgment dated 1't June, 2009, which is now herein.

8.The controversy now mainly revol around the question of partial pre-emption, superior right of pre- on and the Court fee, which is encapsulated in issues No.2o 5 and which were framed as under: - \,, Wether the suit is for partial pre

Wether the plaintiffs have a right of pre-emption against the vendee-defendant? OP

Wether the suit has not been ly valued for the purposes ofCourt fee and jurisdiction? OPD

9.In order to establish the superi right of pie-emption Muhammad Shfaique, one of the respondents in the witness box as PW-5. As per his statement the plaintiffs ( dents) are collaterals of the vendor who is their real aunt. statement was further corroborated by Mumtaz Ahmad and Nabi, who appeared as PW-l and PW-2 respectively. To this effect, th statements of witnesses went un-rebutted as thev were even not by the appellants. Even one of the appellants ly Javed Iqbal, while appearing as DW-2 did not controvert the of the respondents witnesses. In addition to oral account there a copy of register Haqdarun-i-zamin @xh.P2), which also gives to the version of respondents.

10.Attendine the contention of leamed I for the appeilants that statements of the witnesses Broduced bv th respondents to establish the relationship is onlv a hearsav evidence and it is inadmissible in the light of principles laid down in " NAWAB KHAN" (PLD 1976 SC 767), it is observed with utmost reverence to the principles laid down in the supra that in the

said case, only oral evidence was produced o prove the relationship which was held inadmissible on the of Section 50 of the Evidence Act, 1872. The instant case is not ly rested upon oral account brit in order to substantiate the on of relationshio. the respondents also produced documentary evi ce in the shape of copy of register Haqdaran-i-Zamin @xh.P2) and gree table (Exh.P4), which were even not rebutted by the through any cogent or material evidence.

11.It is apparent from the record that in e first round durins the pendency of appeal before the leamed Addi onal District Judge, the respondents moved an application under XLI Rule 27 "CPC" seeking production of pedigree table as itional evidence. The application was though declined by the iearned dditional District Judse but when the matter came up before this in R.S.A No.37 of 1991 the respondents were allowed to produce the sree table in evidence in the statement of concemed functionari The respondents then produced the pedigree table Exh.P4. Perusal f the same reveals that Khurshid Bibi (vendor) was recorded as real of Rasheed Ahmad. father of the respondents (plaintiffs).

t2. So far contention of leamed counsel fior the appellants that the respondents were allowed to produce the peSi table in evidence subject to cost which was not paid and as there is no evidentiary value of Exh.P4; suffice to observe that failure |o pay cost undoubtedly a fault but it is not of such a maenitude that iticould be made basis for disarming a party from a right which has to him throueh a valid order. Non-payment of cost cannot be made ]basis for perpetuating a wrong or injustice which is otherwise apparent [n the record and that too without affotding litigmtt an opportunity td do the needful. Even otherwise, it is apparent from the record that hon-payment of cost was neither intentional nor willful. The since have assailed the judgment dated 6tr November, 1997 allowing dge respondents to produce

R.S.A No.88 of 2009

pedigree table in evidence before the H 'ble Suoreme Court of Pakistan through C.P.L.A No. 161 8-L/1997, ich was decided on 12ft April, 1999. So, there was no occasion for em to deposit the cost immediately after decision of R.S.A No.37 of 1991. It appears that due to some oversight, cost could not be deposited the time of tenderins of pedigree table in evidence, which was as such even without any objection from the appellant. Guidance in respect can be sought from "

JEHANZEB, ETC." (2013 PSC 1319).

i. Adverting to the question of ial pre-emption, it ls observed that appellants have purchased I measurins 94-kanals 7- marlas vide sale deed No.4687 dated 25'n , 1978, which was pre-empted by the respondents through the Perusal of olaint reveals that in the headnote respondents have though whole land as a subject of pre-emption but in para-2 while detail and description of the same, area of one Khasra number was mentioned thoueh total area was rightly mentioned as 94-kanals 7-marlas. This omission was, however, rectified by the respondents, le moving an application under Order VI Rule 17 "CPC' seeking am in the plaint which was allowed vide order dated 20th April. I . Even omission in the statement of Muhammad Shafique (PW-5) to effect was corrected by the orders of the learned Trial Court. It thus surely be held that the suit is not hit by partial pre-emption.

14.Next comes the issue relating to fee. Suit was instituted on 23'" September, 1979. The respondents the valuation of the suit for the purposes of Court fee at Rs.245 on the basis of chart of net profit appended with the plaint. The llants, however, while submitting written statement objected the val on of the suit. By way oforder dated 25th November, 1979, respon were directed to make up the deficiency in Court fee after submissi of chart of net profits. The respondents affixed the Court fee ofRs.1 l25l- as per chart of net

profits (Exh.P3) whereafter leamed Trial throush order dated 22no February, 1979 observed that no deficiency Court fee is left. It is though stance.of the appellants that chart ofn profits was not prepared correctly and the conduct of respondents is tumacious but it can be seen from the record that basis for such ion is statement of net profits produced by the appellants as 7 through Muhammad Anwar, Naib Tehsildar who appeared as - . It is an admitted position on the record that Exh.P3 was al prepared by the same revenue officer (i.e. DW-l). As per Exh.P3, n profits were assessed as Rs.88l 1 and as such the resnondents were to levy the Court fee on the basis of 15 times of net profit or rent produce of the previous year. The respondents thus levied Court fee o Rs.10125/-. It is evident from the record that the leamed trial Court never determined any Court fee. Law is well settled that no party be made to suffer due to any act of the Court. From the record it cannot inferred in any stretch of imagination that there is any contumacy on e part of respondents in the matter of Court fee. Plaint cannot bb rejected on account of deficiency of Court fee unless plaintiff is giv a chance to make up the deficiency. In terms of Exh.D7, net profits f land in question were Rs.10819/- and the Court fee which beco leviable is Rs.12171l-. While observing the deficiency of Rs.2047i- the Court fee, leamed Additional District Judee directed the dents to make up the deficiency of Coud fee within period of one onth. Failure to make uo the deficiency contemplates automatic ences in the form of rejection of plaint and rightly so.

15.So far principles laid down in the of ,.MUBARAKAHMAD, ETC. v. HASSAN MUHAMMAD" Q002 SCJ 172), :

others" (1997 SCMR 919), " (200? SCMR 494), it is observed that there can no second opinion that if the plaintiff in a suit for pre-emption, is by the Court to make up deficiency in the Court fee and despite a iling ample opportunity,

he/she fails to,do so, his/her piaint merits rej on. In the case at hand, it can be noted without any hint of doubt that th leamed Trial Court has never directed the respondents to make up the eficiency in Court fee as no Court fee was even determined. It cannot said that the respondents remained guilty of contumacy in the matter of fee. The principles laid down in the above referred cases are thus ot attracted to the matter in issue. Guidance in this respect can be from "SIDDIOUE

: (PLD

1984 Supreme Court 289). The relevant from the same is reproduced below: -

"Contumaqt in the context is u in the general dictinnary sense and not as a word of art, ft means of lawful authority, obstinacy, or stubbornness. It is not to tliscover the connection of these attiluiles with the subject tliscussion, If a plaintiff is allowed time to supply the cleficiency in be under Order VII, rule 11 (c) as a matter of course and (hecause, the rejection of plaint cannot take place without cloing ) then in case he fails to do so, and asks for more time without some j it would amount to his being obstinate and stubborn ignoring or defying the requirement and authority of law, The of such a condact would amount to contumacy, Similar of this wortl in Sohma v. Rashid Ahmqd (l) by AJiab J. us he then wus, is approved,"

16.There is yet another contention of learned counsel that an application under Section 476 "Cr.P.C" rvas oved by the appellants before the Trial Court which remained unatt ed and as such without decision the main lis carurot be decided. It observed that no such application was ever moved. There was only a iscellaneous application uirder Section 151 "CPC" seeking reconstructi of record relatins to an affidavit purportedly submitted by the respond ts alongwith application seeking condonation of delay for submission o statement of net profits.

It is evident that said application has no materia bearing on the merits of the case. The appellants have even never this question in the previous round though matter went upto the H 'ble Suoreme Court of Pakistan. It is not an inflexible rule that in all e entualities non-decision of an application would effect the merits of case. When it is found

that the contents of application are superfluo failure to pass an order on such application shal1 not cast aspersions the proceedings of the

,,PEER

Court. Reliance in this respect can be placed BAKHSH. ETC. v. NABr BAKHSH. ETC" (2003 CLJ 389).

17.There is no cavil to the proposition exercise of appellate jurisdiction under Section 100 "CPC" cannot curtaiied merely on the ground that findings ofthe Courts below are current but at the same time, the object and scope of said provision be ignored. A person seeking invocation ofjurisdiction in terms of ection 100 ofthe Code hrstlv has to establish that there has been a ial error or defect in procedure and secondly that such a error has resulted in erroneous or defective decision of the case. the case of "BASHIR B (PLD 2010 Supreme Court 906) the Hon'ble Supreme Coutt of has outlined the scope of Section 100 "CPC" in the following much more restricted in its scope compared to a rcguhr rtr$ appl Section 100, C.P.C. Iavs down the limits of jurisdiction of a in second appeal. It stipulates as unde*

't700. Second aooeal.---(l Save where otherwise expressly provided in the of this Code or by any other law fot the time being force, an appeal slrall lie to the High Court from every passed in appeal by any Court subordinate to fl Court, on any of the fo llowin g gro unds, name ly i

(a)the decision being contrary to law or lo some usage having the force of law;

a) tlte decision ltaving failetl delermine some maturtal issue of law or usage having e force of law;

(c)a substantial error or defect tlte procedure provided by this Code or by any otlter "or the time being in force, whiclt may possibly have erfor or defect in the decision of the cflse upon the

7.At this point, we may note that and second appeals are available (wherever provided by law) as In the present case, d second appeal was not auailable to petitioner. He, therefore, invo:ketl the rcvisional jurisdiction of the High Court under section 115, C.P.C. This jurisdiction is, in respeus, even w)fe restricted than the appellate jurisdiction section 100, C.P.C., because a judgment can be nssniled a revision petition onlJ) where it suffers from a jurisdictional of the natwe set out in

clauses (a),(b) and (c) of section 115, C.P,

8.As opposed to Jirst and appeals, provided for in sections 96 and 100, respectively of C.P.C., the provisions of Article 185(3) of the Constitution do confer any right on an unsuccessful litigant, to prefer an to this Court, He must seek leave to appeal, and in order to be such leave, a petitioner under Article 185(3) ibitl, is obliged slrore something q.t least equivalent to d not more stringenl than is required by section 100 or 115, C,P.C. It is this requirement lays down the minimum standard and sets the bar for granting to appeal under Article 185(3) ihid. In the contert of the pr cose, we wouhl like to exaitine the criteria for determining Ieave to appeal shoald or sltould not be granted, This necessarily have to be determined in the light of lhe facts and circumstances this petition and, tlterefore, exhaustive rules of universal application neither be appropriate nor possible.

9.Guidance in laying down for grant of leave to appeal, can, however, be tflken from the of section 96 and section 100 of the Code of Civil Proc One rule which can be safely laid down is that in order to be leave to appeal under Article 185 (3) of the Constitution, t very least, the petitioner should satisfy the requirements of s 100, C.P.C. In the present case, it is quile obvious to us thnt the of the learned Courts below are neither contrary to law nor, asage having the force of law, Likewke, we have not been shown the impugned judgments have omitted to decide "some material iss of law or usage having the force of law," We may note at this that not all instances of a Court's failure to decide an hsue will sufrer for the purpose of allowing an appeal. It is only a failure to material issues which will enable an aggrieved party tb the jurisdictinn of an appellate Court, The question of ', that is, whether or not an issue of a mflterial natarc, will depend whether the altimate decision of the Court of lirst appeal wou have been dffirent, if the omitted issued had been ileterminetl bv it. in onler to succeed in second appeal on ground (b) of (I) of section 100, C.P,C,, an appellant would have to show that the of first appeal b,ould have reached a dffirent conclusion, it not failed to tlecirle the issue of law or usage specffied in ground ihitl.

10, We now take up for ground (c) gren in sub-section (1) of section 100, C.P,C, provision rcquires an appeal, to show lirstly that rcre has been subslantial error or ilefect in procedure and secondly that such a s enor coukl have resulted in an erroneous or defective of the case. Illastrations to highlight such substantial errors dre hard to find, However, no such substantial error arises from the j assailed before us."

The above principles were also reiterated in the Of ,,MUHAMMAD ': (2006 scMR

18.After having an overview of principles referred hereinabove, I am of the considered opinion concurrent findinss of the Courts below are bereft of any substantial or orocedural defect. materially effecting such findings justiffing terference. The findings arrived by both the Courls below are nei perverse nor arbitrary. Consequently the instant second appeal, be without any merits fails and is dismissed with no order as to costs.

19.Needless to observe that the should deoosit the cost of Rs.l000/- as per dictates ofjudgment 6tr November, 1997 within fonnight accordingly.

.n"t-"/t'

VIQAS RAUF)

rUDGE Approved for reporting.

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QADGE)