Muhammad Ijaz vs Suleman Asghar (Deceased) Through His Legal Heirs

Stereo.HCJDA 38.

Judgment Sheet

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

CIVIL REVISION NO.104-D of 2015

MUHAMMAD IJAZ

Versus SULEMAN ASGHAR (Deceased) Through His Legal Heirs

JUDGMENT

Date of hearing: 30.09.2025 Applicant by: Sheikh Zamir Hussain, Advocate.

Respondents by: Mr. Junaid Iftikhar Mirza, Advocate.

MIRZA VIQAS RAUF, J. This civil revision assails the vires of judgment and decree dated 24th December, 2014, whereby learned Additional District Judge, Rawalpindi, while allowing the appeal preferred by predecessor-in-interest of the respondents namely Suleman Asghar (hereinafter referred to as “pre-emptor”) set aside the judgment and decree dated 18th January, 2011 passed by learned Civil Judge Class-I, Rawalpindi, resulting into decreeing the suit of the pre-emptor.

2.The facts in brief necessary for adjudication of instant application are that the pre-emptor instituted a suit for possession through pre-emption averring therein that land which is duly described in headnote of the plaint was purchased by the applicant from Rehman through mutation No.694 dated 5th July, 2007 in lieu of sale consideration of Rs.3,00,000/-. As per averments contained in the plaint, the pre-emptor attained the knowledge of sale on 20th October, 2007 at about 10:00 am when he was present in his house alongwith Gulistan Mehmood and Muhammad Azad in pursuance to information disclosed by Muhammad Riaz. It is the case of the pre-

emptor that immediately on attaining the knowledge, he performed necessary Talbs so as to exercise his superior right of pre-emption. The suit was contested by the applicant, who filed his written statement, wherein the assertions contained in the plaint were controverted. The divergent stance of the parties resulted into framing of necessary issues. During recording of evidence of the pre-emptor, the applicant absented himself and he was proceeded against ex-parte. After recording of ex-parte evidence, the trial court dismissed the suit vide judgment and decree dated 18th January, 2011. The pre-emptor feeling dissatisfied from the said judgment and decree preferred an appeal before learned Additional District Judge, Rawalpindi, which was allowed through impugned judgment and decree dated 24th December, 2014, hence this revision application under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as “C.P.C.”).

3.Learned counsel for the applicant in support of instant revision application submitted that suit was initially rightly dismissed by learned Civil Judge and the judgment was though unexceptionable but learned Additional District Judge without any lawful justification has taken another view. Learned counsel contended that performance of Talbs was though not proved by the pre-emptor but learned Additional District Judge has completely misread the evidence and accepted the appeal in an illegal and unlawful manner.

4.Learned counsel for the respondents on the other hand, while defending the impugned judgment and decree submitted that the pre- emptor has duly established his superior right of pre-emption. He added that performance of necessary Talbs was though duly proved on the record but the suit was initially dismissed by the trial court without taking into consideration the material pieces of evidence. Learned counsel maintained that the Appellate Court in recognition of the overwhelming evidence led by the pre-emptor allowed the appeal and set aside the judgment and decree of the trial court. Learned counsel contended that learned Additional District Judge

has committed no illegality, while setting at naught the judgment of learned Civil Judge.

5.Heard. Record perused.

6.The pre-emptor while canvassing his superior right instituted the suit pre-empting the sale effected in favour of the applicant. It is, however, noticed that the pre-emptor did not appear in the witness box. The question arises as to “whether non-appearance of the pre-emptor in the witness box was fatal to his right of pre- emption or not?

7.Section 14 of the Punjab Pre-emption Act, 1991 (hereinafter referred to as “Act, 1991”) though duly recognizes that if a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf but one opting to plead his cause through his agent has to show justifiable reason as to why he/she himself/herself avoiding appearance. It evinces from the record that Talb-i-Muwathibat and Talb-i-Ishhad were though purportedly performed by the pre-emptor, but he failed to enter into the witness box without any justifiable reason. No valid disability is brought on the record on the part of the pre-emptor, operating as a hurdle in his way to appear and depose in support of his right of pre- emption. In the case of DILSHAD BEGUM versus Mst. NISAR AKHTAR (2012 SCMR 1106) the Supreme Court of Pakistan, while dealing with the similar proposition held as under :-

“6. Admittedly there is nothing on record to indicate as to why she did not appear in person. P.W.7 Habib-ur- Rehman who appeared as her special attorney in his examination-in-chief stated that the pre-emptor was her sister in law (sister of his wife); that she resides with him but gave no reason as to why she did not appear herself. Even the other two witnesses namely P.W.5 Ghani-ur-Rehman and P.W.6 Hassan Bacha did not give any reason whatsoever for her non-appearance. It has time and again been held by this Court that the right to pre-empt is a personal right. In Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957) this Court at page 960 held as follows:-- "The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab

Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (ibid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-i-Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre- emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-i-Muwathibat himself and appear in Court in person."

7.The afore-referred view was reiterated in Hassan Bano v. Wali-ur-Rehman (2007 SCMR 1344).”

Reference in this respect can also be made to the case Mst. LALAN BIBI and others versus MUHAMMAD KHAN and others (2007 SCMR 1193).

8.The above referred survey of law enunciated on the proposition, leads me to an irresistible conclusion that non- appearance of the pre-emptor(s) in the witness box without assigning any reason is sufficient enough to draw a negative inference as contemplated in Article 129(g) of the Qanun-e-Shahadat Order, 1984 and there remains no doubt that case of the pre-emptor is clearly hit by the above referred principle.

9.Talb-i-Muwathibat is the first and foremost important step for exercise of right of pre-emption. As per Section 13(1) of the Act, 1991 Talb-i-Muwathibat means immediate and jumping demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know about the sale by declaring his intention to exercise the right of pre-emption. As per claim of the pre-emptor, he attained knowledge about the sale transaction on 20th October, 2007 at about 10:00 am from Muhammad Riaz (PW3) when he was present in his house alongwith Gulistan Mehmood (PW1) and Raja Muhammad Azad (PW2). Admittedly the applicant and pre-emptor are real brothers, so in such situation it is highly improbable that the pre-emptor was not aware of the sale transaction prior to the alleged date of knowledge, which is fatal to his case. Guidance in this regard can be sought from ARSHAD IQBAL versus MUHAMMAD HAYAT (2017 YLR

10.There is yet another important aspect; as per contents of the plaint, the pre-emptor attained the knowledge about the sale

transaction in his house, without specifying the exact portion of house. Needless to observe that house is vast place and non- mentioning of exact portion by itself is fatal to right of pre-emption. Guidance in this respect can be sought from ALLAH DITTA through L.Rs. and others versus MUHAMMAD ANAR (2013 SCMR 866). Reference in this respect can also be made to the cases of NOOR MUHAMMAD SULTAN versus Hafiz ALLAH BAKHSH (2014 YLR 1381) and MUHAMMAD AFZAL versus ALI MUHAMMAD (2014 YLR 87).

11.Adverting to the performance of Talb-i-Ishhad, it was incumbent upon the pre-emptor in terms of Section 13(3) of the Act, 1991 that soon after performance of Talb-i-Muwathibat as soon as possible but not later than two weeks from the date of knowledge to perform Talb-i-Ishhad, by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre- emption. The applicant in his written statement denied the receipt of notice of Talb-i-Ishhad. The pre-emptor in such circumstances was thus obliged to prove the service of notice by producing cogent and convincing evidence. Admittedly no postman was produced by the pre-emptor. It is now well settled principle of law that it is the bounden duty of the pre-emptor to prove the service of notice of Talb-i-Ishhad by producing the postman as held in ALLAH DITTA through L.Rs. and others versus MUHAMMAD ANAR (2013 SCMR 866). For the sake of guidance, the relevant extract from the same is reproduced below:-

“2..........As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below.”

Even otherwise admittedly no receipt of acknowledgment due was produced in order to prove the service of the applicant, which is also fatal to the case of pre-emptor. Reference in this regard can be made to BASHARAT ALI KHAN versus MUHAMMAD AKBAR (2017 SCMR

12.It is noteworthy to mention here that evidence before the trial court was recorded by local commission, which is not permissible under the law. This Court while dealing with similar proposition in the case of MUHAMMAD SHAFIQ versus MUHAMMAD YASIN (2020 LHC 2222 LHC website) held as under :-

“It is an admitted fact that after framing of issues evidence of the parties was recorded through reader of the court and local commission. Suit was initially dismissed, however, in appeal preferred by the respondent, learned Additional District Judge, while observing non-compliance of Rules 4, 5 & 8 of Order XVIII of “CPC” accepted the appeal and remanded the matter to the learned trial court to decide the same strictly in accordance with law. The moot point thus emerges before this Court is as to the effect of non-compliance of provisions contained in Order XVIII of “CPC” on the judgment rendered by the court on the basis of evidence not recorded by the Presiding Officer himself.

7.Though in the case of “FAYYAZ AHMAD and others versus Mst. ANAZA BUKHARI and others” (2016 MLD 1271) and “LIAQUAT ALI versus ADDITIONAL DISTRICT JUDGE, JHELUM and 2 others” (2014 CLC 112) this Court observed that in absence of any prejudice to any party such omission of Judge could not be termed as an illegality but to my mind principles laid down in the said cases would not be helpful to the petitioner as it appears that the Court was not properly assisted on both the occasions. There is yet another distinctive feature as in the case of Liaquat Ali’s supra matter was dealt with in constitutional jurisdiction which undoubtedly has different scope as compared to the revisional jurisdiction. In the case of Fayyaz Ahmad’s the learned Civil Judge has appended memorandum at the foot of the statements of the witness as such principles laid down in the said judgment are also not applicable to the case at hand. It is even apparent that judgment of this Court rendered in the case of “GHULAM MUSTAFA and another versus ABDUL MALIK” (PLD 2008 Lahore 4) was not brought in the notice wherein this Court, while outlining the object and scope of Order XVIII of “CPC” held as under :- “6. It stands proved on record that testimony of P.W.5 and P.W.6 and also of D.W.1 and D.W.2 was got recorded by the Reader and not by the court itself. It also has been admitted that evidence was got recorded in one suit only and was thereafter copied in all the other suits. Order XVIII contemplates that if evidence is not taken down in writing by the Judge, he shall be bound as the examination of each witness proceeds to make a memorandum of the substance of what each witness deposes, and such memorandum shall

be written by the Judge and shall form part of the record. This provision is mandatory and is required to be strictly adhered to and followed, the enactment has been incorporated, so, that the Judge should be cognizant of the testimony made by the witnesses, to obviate any chance of misconstruing or misinterpreting it. In furtherance thereto Rule 14 of Order XVIII contemplates that if the Judge is unable to make a memorandum as required by this Order, he shall cause reasons of such inability to be recorded and shall cause the memorandum to be made in writing from his dictation in open Court. Order XVIII, Rule 14(2) thereafter provides that the memorandum so made shall form part of the record, therefrom, this provision makes it imperative, incumbent and binding upon the court to record reasons for its inability to make a memorandum and till the needful is not done, the same cannot be treated to form part of record. Thus it is absolutely clear and unambiguous, that provisions of Order XVIII, Rule 8 and Order XVIII, rule 14, C.P.C. have to be complied with, completely and adhered to as mandated, because if needful is not done, the same cannot be treated to be part of the record. Though the Civil Procedure Code, 1908, contains both substantive and procedural enactments, and the present matter prima facie falls into the ambit of procedural enactment, but the provision assumes and wears the mantle, of substantive law, because a specific penalty is provided for non- compliance. In the present matter the provision were not adhered to, therefore, the testimony of these witnesses could not have been treated to form part of record. But it was so done, thus evidence was misread.

7.The contention of the learned counsel that putting a certificate at the end of testimony of P.W.6 by the court "dictated by me" is substantial compliance of the stated provisions is incorrect, because the order contains no reasons, as contemplated by law. It, therefore, is overruled.”

Guidance in this respect can also be sought from “MUHAMMAD RAFIQUE and others versus MUHAMMAD RAMZAN and others” (2007 SCMR 540).

8.In order to regulate the procedure in the matters relating to the civil disputes “CPC” was promulgated. Order XVIII of “CPC” prescribes the mechanism of hearing of the suit and examination of witnesses. Rule 4 of the said Order mandates that evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and superintendence of the Judge. In terms of Rule 8 where the evidence is not taken down in writing by the Judge, he is bound to make a memorandum of the substance of what each witness deposed and such memorandum is to be written and signed by the Judge which shall form part of the record. In furtherance thereto, Rule 14 of Order XVIII contemplates that if the Judge is unable to make a memorandum as required by the Order, he shall cause reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open court. Order XVIII Rule 14(2) of “CPC” thereafter provides that the memorandum so made shall form part of the record, therefrom, this provision makes it imperative, incumbent and binding upon the court to record reasons for his inability to make a memorandum and till the needful is not done, the same cannot be treated to form part of record. It is thus absolutely clear and unambiguous that

provisions of Order XVIII Rules 8 & 14 of “CPC” have to be complied with completely and adhered to as mandated, because if needful is not done, the same cannot be treated to be part of the record. There is a cardinal principle of law that when a statute describes or requires a thing to be done in a particular manner; it should be done in that manner or not at all. Reference in this respect, if needed, can be made to “MUHAMMAD HANIF ABBASI versus IMRAN KHAN NIAZI and others” (PLD 2018 Supreme Court 189), “SHAHIDA BIBI and others versus HABIB BANK LIMITED and others” (2016 CLD 2025) and “ZIA UR REHMAN versus Syed AHMED HUSSAIN and others” (2014 SCMR 1015).

9.In addition to the above, one cannot ignore the provisions embodied in the Qanun-e-Shahdat Order, 1984, which was promulgated to consolidate the law of evidence, so as to bring it in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah. Chapter X of the Order ibid lays down the procedure of the examination of witness. Article 130 provides the order of production and examination of witnesses, which is to be regulated by the law and practice for the time being relating to civil and criminal procedure respectively and in the absence of any such law by the discretion of the court. By virtue of Article 131 a power is vested with the court to decide as to the question of admissibility of evidence. In terms of Article 137 a clog has been imposed on asking of leading question except with the permission of the court. By virtue of Article 143 it is the court, who can decide when a question be asked and when witness to be compelled to answer. Recording of evidence is not a mere formality. Non-adherence to the procedural provisions would result into a chaos on the one hand and on the other it will render all the procedural requirements, which are undoubtedly for the advancement of ends of justice, as illusory and incapacitated. Provisions relating to recording of evidence by the Presiding Officer himself and in the manner provided by the law is meaningful in all respects. Allowing an abdication to the provisions regulating the recording of evidence would mean to render the same as redundant and obsolete. Role of a Court in the matter of recording of evidence is not symbolic but authoritative in all respect.

10.Adverting to the ratio laid down in the judgments reported as “FAYYAZ AHMAD and others versus Mst. ANAZA BUKHARI and others” (2016 MLD 1271) and “LIAQUAT ALI versus ADDITIONAL DISTRICT JUDGE, JHELUM and 2 others” (2014 CLC 112) it is observed that both the pronouncements run on the question of prejudice to the party and it was held that in absence of any prejudice to any party omission on the part of Court/Judge to adhere the mandate of Order XVIII “CPC” cannot be termed as an illegality.

11.The term “prejudice” is though nowhere defined in the “CPC” but for the said purpose we can advert to the different law dictionaries. The Chambers Dictionary provides the definition of “prejudice” as “a judgement or opinion formed prematurely or without due consideration of relevant issues; prepossession or bias in favour of or against anything; unthinking hostility; injury or harm; disadvantage; a prejudgment (obs); (Spenser prejudize) prognostication. – to fill with prejudice; to prepossess or bias in favour or against something; to injure, harm or endanger; to prejudge, esp unfavourably (obs). – adj prej’udiced having prejudice; biased. – adj prejudicial (-dish’l) injurious; detrimental;

prejudiced (obs). – adv prejudicially. – without prejudice a phrase used to require an understanding that nothing said at this stage is to detract from one’s rights, to damage claims arising from future developments, or to constitute an admission of liability.”

Black’s Law Dictionary Ninth Edition portrays the meaning of “prejudice” as noted below :- “prejudice, 1. Damage or detriment to one’s legal rights or claims. See dismissal with prejudice and dismissal without prejudice under DISMISSAL.

legal prejudice. A condition that, if shown by a party, will usu. defeat the opposing party’s action; esp., a condition that, if shown by the defendant, will defeat a plaintiff’s motion to dismiss a case without prejudice. • The defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defence that will be unavailable or endangered in a second suit.

undue prejudice. The harm resulting from a factrier’s being exposed to evidence that is persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the emotions that claim and logical reasoning is abandoned.

2.A preconceived judgment formed with little or no factual basis; a strong bias.”

In the Random House Websters’s Unabridged Dictionary Second Edition meaning of “prejudice” is defined as under :- “prejudice 1. an unfavourable opinion or feeling formed beforehand or without knowledge, thought, or reason, 2. any preconceived opinion or feeling, either favorable or unfavorable. 3. unreasonable feelings, opinions, or attitudes, esp. of a hostile nature, regarding a racial, religious, or national group. 4. Such attitudes considered collectively: The war against prejudice, is never-ending. 5. damage or injury; detriment: a law that operated to the prejudice of the majority. 6. Without prejudice. Law. without dismissing, damaging, or otherwise affecting a legal interest or demand. 7. to affect with a prejudice, either favorable or unfavorable: His honesty and sincerity prejudiced us in his favor.”

An inference from the above thus can safely be drawn that whenever there is a departure intentional or unintentional from an express provision of law it will result into causing a prejudice to one of the party to the lis.

12.This Court in the case of “COLLECTOR OF SALES TAX versus Messrs KHURSHID SPINNING MILLS LTD. and another” (2017 PTD 196) held as under :- “9. The very assumption of jurisdiction by the Assistant Collector, in the instant matter, was against the said express provision of law. It is well settled that a forum cannot take cognizance of a matter beyond its pecuniary jurisdiction, prescribed in the relevant law. Inherent defect cannot be cured to defeat the provisions of statutes or enactments affecting the jurisdiction of a forum. It is inalienable right of every citizen to have protection of law and to be treated in accordance with law, in terms of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973. An order passed against a person by any forum against, express provisions of law on the subject, if allowed to stay intact, would cause serious prejudice to legal right of citizens. Reference can be made to Izhar Alam Farooqi, Advocate v.

Sheikh Abdul Sattar Lasi and others (2008 SCMR 240), Mst. Fateh Bevi and others v. Additional District Judge, Khushab and others (2008 SCMR 1262), Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255) and OMV Energy v. Ocean Pakistan and others (2015 CLC 1504).”

13.There is no cavil to the proposition that in terms of Order XVIII Rule 4 of “CPC” evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. By virtue of Rule 8 if the evidence is not recorded by the Judge himself he is bound to make a memorandum of the substance of what each witness deposed and such memorandum is to be written and signed by the Judge which shall form part of the record. It is manifestly clear therefrom that law provides mechanism for recording of statements of witnesses. Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates an inalienable right of every citizen and to be treated in accordance with law. The proceedings conducted in oblivion of legal mandate or an order or judgment passed against a person by any Court/Tribunal/Forum offending the express provision of law on the subject, if allowed to stay intact, would cause serious prejudice to legal right of parties. Guidance in this respect can be sought from “MUHAMMAD ANWAR and others versus Mst. ILYAS BEGUM and others” (PLD 2013 Supreme Court 255). The relevant extract from the same is reproduced below :- “11. In the instant case, the learned Revisional Court while overturning the trial court order has absolutely failed to assign any valid reasons, except invoking the general principle of law that the technicalities of law should not be allowed to thwart the rights of the litigants. I fail to understand as to how the noted principle can be used as a tool to avoid, shun or to defeat the specific rules of law and to save a party from the consequences of its delinquency against the clear command of law on the concept and in terms of legal technicality. It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as a technicality.”

14.Learned counsel for the petitioner as a last resort though has pointed out that by virtue of Act XIV of 2020, Section 26B has been added in “CPC” which bestows the court power to appoint a Commission from a list of approved penal, comprising of advocates and retired judges, maintained by the District Judge concerned, on payment of such fee and terms and conditions as may be determined by the court for the purpose of recording of evidence but suffice to observe that such an amendment cannot operate retrospectively it will always be of prospective implication. Reliance in this respect can be placed on “Messrs SUI SOUTHERN GAS COMPANY LTD. and others versus FEDERATION OF PAKISTAN and others” (2018 SCMR 802) and “SHAHIDA BIBI and others versus HABIB BANK LIMITED and others” (PLD 2016 Supreme Court 995).

15.There can be no cavil to the proposition that a court can direct recording of evidence through a local commission but this can be done in extraordinary and rare circumstances. Such power cannot be exercised in an omnibus fashion for defeating the object of Order XVIII of “CPC” and Chapter X of the Qanun-e-Shahadat Order, 1984.”

13.There is no cavil to the proposition that whenever there is difference of opinion in the judgments of the courts below, ordinarily preference is to be given to the judgment of the appellate court but it is neither an inflexible rule nor it can be pressed into service in an “omnibus fashion”. This Court while exercising its revisional jurisdiction is supposed to examine the propriety and validity of both the judgments in question. The judgment of the appellate court can never be treated as a sacrosanct. Learned Additional District Judge, while allowing the appeal of the pre- emptor, has committed material irregularity, while ignoring the material pieces of evidence and also the principles of law as discussed hereinabove. After having a comparative analysis of both the judgments in the light of available evidence it can safely be inferred that the findings of the learned Civil Judge were in consonance with the settled principles of law. The exercise of appellate jurisdiction by learned Additional District Judge was thus unwarranted under the circumstances and contra view was not permissible.

14.As a sequel of above discussion, while accepting the instant application the judgment and decree dated 24th December, 2014 passed by learned Additional District Judge, Rawalpindi is set aside. Resultantly the judgment and decree dated 18th January, 2011 passed by learned Civil Judge Class-I, Rawalpindi is restored, as a consequence thereof, suit instituted by the pre-emptor shall stand dismissed with no order as to costs.

(MIRZA VIQAS RAUF)

JUDGE

APPROVED FOR REPORTING

JUDGE

Shahbaz Ali*