Hameed Gul Vs Shamraiz Khan

I

JUDGMEIYT SHEET

II,{ THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) CR No. 163-A12025 with CMs No.247-A12025 stav. CM No.248- A/2025 Hameed Gul.

(Petitioner)

VS

Shamraiz Khan.

(Respondent)

Present Mr. Kamran Gul, Advocate, and Mr Mudassir Liaqat for the petitioners.

Respondents are not represented being a motion case.

Dates of hearing: 22.05.2025

JUDGMENT

AURANGZEB, J.- Through the instant civil revision, petitioner has challenged the judgment and decree of learned Additional District Judge-I, Abbottabad dated 20.11.2024, whereby, the appeal filed by the present petitioner was dismissed and thereby maintained the judgment and decree of learned trial Court dated 30.06.2022 who vide the same had also dismissed the suit filed by the p etiti oner/pl ainti ff.

Z. Precisely, the facts of the case leading to the filing of the instant civil revision petition are

that the present petitioner being a pre-emptor brought a suit against the respondent for possession through enforcement of right of pre- emption in respect of suit property, detail of which is fully mentioned in the heading of the plaint which suit was duly contested by the present respondent/ defendant by filing written statement.

In view of the pleadings of the parties, the learned trial Court framed issues and thereafter the parties were asked to produce their respective evidence which they have accordingly led and after hearing the arguments, the learned trial Court dismissed the suit of petitioner/plaintiff vide the first impugned judgment and decree dated 30.06.2022.

The petitioner being aggrieved of the aforesaid judgment and decree preferred an appeal, however, the same was also dismissed by learned Additional District Judge-I, Abbottabad vide the second impugned judgment and decree dated 20.11.2024 which judgments and decree have now been challenged by the petitioners through the instant revision petition

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3.Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.

L The record reflects that the petitioner/plaintiff received information regarding the impugned sale transaction on 16.03.2013 at 1l:00 AM, while he was sitting in his brother's office. This information was conveyed to him by his brother, Khalid Rehman Khan, in the presence of Muhammad Shoaib Khan and Syed Musadiq Hussain Shah. Upon receiving this information, the petitioner/plaintiff immediately made an express declaration of his intention to exercise the right of pre-emption (Talb-i-Muwathibat). Subsequently, after obtaining a copy of the mutation, he sent a notice of Talb-i-Ishad on 27.03.2013, attested by witnesses and dispatched via registered post with \ acknowledgment due, however, during the course of the proceedings, the petitioner/plaintiff went abroad, and his statement in support of his claim was not recorded. Instead, a statement was made by his attorney, Syed Musadiq Hussain Shah, who also happened to be one of the witnesses to the Talb-i- Ishad. In light of settled jurisprudence, this does not

substitute of the pre-emptor under the law, therefore, notwithstanding the - 7 - 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 reqson that he has claimed performance of Talb-iMuwathtbat 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

I 344).

8.There is yet another aspect. The best evidence with regard to performance of Talb- eMuwathibat is the person who makes such a tatb. The ffict of non-production of best evidence is provided in section 129 of the Qanun-e-Shahadat Order, 1984, which reads as \ follows:-

"129. Court may presume existence of certain facts. Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public ond private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume-

constitute valid performance of Talb-i-Muwathibat, which is strictly considered a personal act. Talb-i- Muwathibat must be performed and proved personally by the pre-emptor, as it involves an immediate and unequivocal expression of intent that cannot be substituted by an attorney. Since the making of Talb-i-Muwathibat is a crucial question of fact in pre-emption cases, the petitioner/plaintiff was required to establish it through his own testimony under oath and subject himself to cross- examination. Therefore, it is safely concluded that the petitioner/plaintiff has failed to prove the performance of Talb-i-Muwathibat in the manner reouired bv law. In the case of "Muhammad Riaz vs. Muhammad Akram and others" reported as 2024 692 the Hon'ble Apex Court has held that;

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

(a)that man who is in possession of stolen goods soon after the theft is either the theif or has received the goods knowing them to be stolen, unless he can occount for his possession;

(b)that on accomplice is unworthy of credit, unless he is coruoboroted in material particulars;

(c)the a bill ofexchange, accepted or endorsed, was accepted or endorsed for good considerotion;

(d)that a thing or stqte of things which has been shown for be in existence within a period shorter than that which such things or states of things usually cease to exist, is still to existence,'

(e)the judiciol and fficial acts have been regulority performed;

(fl that the common course of business has beenfollowed in particular cases;

(g)that evidence which could be and is not produced would, if Produced, be unfovourable to. the person who withholds it (Emphasis is supplied);

(h)that, if a man refuses to answer a question which he is not compelled to onswer by law, the answer, if given, would be unfavourable to him;

(i)that when a document creating an obligation is in the hands of the obliger, the obligation' has been discharged.

9.The case of the respondent/plainti/f would be squarely hit by Article 129(d of the Qanun-eShahadat Order referred to above as

without assigning any reason, the best evidence was withheld and not produced. In Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1959 (tI/.P) Peshawar 8l), a Division Bench of the said Court observed as follows:-- "It is, therefore, positively proved that so far as Fateh Muhammad Khan ,s concerned, he purchased the property with the notice that it had already been agreed to be sold to the plaintffi. So far as the other defendanr appellants are concerned, none of them appeared in the witness-box except Mr. Afzal Khan. It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross-exqmination. His non-appearonce as a witness would be the strongest possible circumstance going to discredit the truth of his case. By non- appe ar onc e, ther efor e, the defendant appell ants except Mir Afzal Khan foiled to discharge the onus or shift the onus on to the plaintiffs."

It is further held that:

I 1. There is no cavil to the proposition that a pre-emptor can be represented through an \ attorney but there has to be valid reasons for non-appeorance which in the instant case are lacking. The learned High Court condoned this infirmity and reversed the concuruent iudgments on the ground that though educated but she could not "afford and endure the agonies of appearing as q witness in civil matters". Little did the High Court realize that it is in evidence that the power of attorney was given by her in favour of P.W.7 Habib-ur-Rehman in the premises of the tehsil court. If she could appear

at tehsil level, what prevented her to appear before the trial Court or having herself examined through a commission in terms of section 132 of the Civil Procedure Code."

5.Moreover, the witness, who was informer, as well as witness of notice of Talb-i-Ishad though has died, however, he was not examined during his life time. Similarly, the petitioner has never submitted an application for summoning of son of said witness during the course of evidence rather he submitted application after closure of evidence of respondent.

Though Ex PW-l/l the notice has been sent to respondent but no acknowledge due slip is available on record which could suggests personal service of said notice and thus it could not be held that the notice of Talb-i-Ishad was personally served upon respondent By now it is an established jurisprudence that the pre- emptor has not only to prove the sendins of the notice but he has also to prove the service of the notice. In a case of "Allah Dilts v/s ammud Anar" reported as 2013 866 it was held by the Apex Couft that "ffirmative onus to prove the receipt of notice of Talb-i-Ishhad was on the pre-emptor, therefore, notwithstanding any admission of the attorney of the vendee, it was obligatory on the pre-emptor to have proved the sending of notice by leading ffirmative

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evidence". The same rational was followed by the Apex Court in the case of "Bashir Ahmad vh Ghu Rasool' reported as 2011 SCMR 762 whereby it was observed that "under the circumstances, it was incumbent upon the respondent, being the plaintiff, to prove service of notice upon the petitioner/defendant, more so, when there was no aclcnowledgment of the said notice available on record. It is true that the respondent through production of witnesses amply proved that notice of Talb-i-Ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in- fact the same was served upon the former, inasmuch as, it was not brought on record that he refused to accept/receive the notice. In a case of " ' reported

as 2017 SCMR 309 it was held by the Apex Court that "the respondent/pre-emptor did not in terms of section l3(3) of the Punjab Pre-emption Act, 1991 ("Act, 1991") plead in his plaint the issuance of notice of Talb-i-Ishhad "by registered post aclcnowledgment due. Nor did the respondent bring any evidence on record regarding the service of the registered notice of Talb-i-Ishhad by the production of the acknowledgment due card or through the statement of

the postman who may have delivered such notice".

Likewise, in a case of "

Gulbat Khan and others" reported as 2012 SCMR 235 theHon'ble Apex Court has held that"pre-emptor wos obliged to make the Talb, regardless of whether the conditions laid down for completion of sale had been fulfilled. Pre-emptor delayed making of Talb till attestation of sale mutation, thus his suit was rightly dismissed. Pre-emptor foiled to make Talb-e- Muwathibat upon learning of sale, therefore, he foiled to fulfill the requtrement of 5.13(1) and (2) of Khyber Pakhtunkhwa Pre-emption Act, I 987 .

O. It is also relevant to mention here that if the pre-emptor fails to perform the perforrnance of any of the Talabs in accordance with the requirement of law then even if he has performed the remaining Talabs then the same would be immaterial. In the case of "sardar Muhammad (deceased) through LRs Vs \ Tai Muhammod (Deceosed) throush LRs and others" reoorted as 2023 ScM&-lflTthe Hon'ble Apex Court has also held that if performance of a single Talab is skipped or not proved, the superstructure and edifice of the suit for possession through pre-emption falls on the ground.

Z. It is well settled that the High Court's jurisdiction under Section 115 of the C.P.C. is limited in cases of concurrent findings by competent Courts. It can only intervene if there are serious legal flaws, such as insufficient evidence, misreading or ignoring material evidence, reliance on inadmissible evidence, abuse of jurisdiction, or perverse conclusions. Mere disagreement with factual findings or reappraisal of evidence does not justifr interference unless there is gross misreading or overlooking of crucial evidence. In the case of "

(deceasedt through L.Rs and 2 others" reported as 2024 SCMR 1649 the Hon'ble Apex Court has held that;

uWhile exercising jurisdiction under Article Il5 of the C.P.C. the High Court has to Jirst satisfy itself. (i) that the order of the subordinate court is within its jurisdiction, (ii) that the case is one in which the court ought to exercise jurisdiction; and that in exercising jarisdiction that court hos not acted illegally, that is, in breoch of some provisions of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have afficted the ultimate decision. Section 115 applies only to cases in which no appeal lies, und where the legislature has provided no right of appeal. The manifest intention of the legislature is that the order of the trial court, right or wrong, shall be Jinal, except in speciftc circumstances. It is, therefore, obvious that unless the case ts not covered under Section 115 of the C.P.C. and the High Court was satisJied in thts regard, then in such a case no pov)er could be exercised to interfere simply because it dffirs, however profoandly, with the conclusions of the

subordinate court regarding questions of law and facts.

Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC 53 ond Umar Dad Khan and another v. Tila Muhammad Khun and others PLD 1970 SC 288 ref, The scope of jurisdiction of the High Court under Section 115 of the C.P.C. is limited in relation to concunent ftndings of the competent courts. The exceptions to this rule are when the ftndings are based on insufficient evidence, misreading of evidence, non- consideration of material evidence, patent errors of law, consideration of inadmissible evidence, abuse of jurisdiction, and when the conclusions drawn are perverse and based on conjectural presumptions. The erroneous decisions of fact are ordinarily not revisable and the mere fact that the High Court may differ on a qaestion of fact or mixed question of law and fact is not a valid ground for interfering with concarrent jindings. Moreover, the concurrent jindings recorded on the basis of evidence are not susceptible to further review to justify interference by the High Court in revisional jurisdiction. The interference by a High Court in such jurisdiction would not be justifted on the ground that reappraisal of evidence might saggest another view of the matter unless there has been a gross misreading of evidence and material evidence was ignored".

E In this case, the two Courts below have concurrently recorded their findings of facts and law, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non- reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon'ble Apex

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m, Court in the case of "Nasir Ali vs. Muharymctd Asshar" reoorted as 2022 SCMR 1054 that section I15, C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is wtthin its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregulariQ or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the Htgh Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an iltegality of the nature in the judgment which may have material effect on the result of the case or f the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere tn the concurrent conclusions arrived at by the courts below while exercising power under section l15, C.P.C. Similarly, in the case of

L.ts t4

"Salamat Ali and others vs. Muhammad Din and M" reported as P , it

was also held that a revisional Court cannot upset a finding offoct of the Court(s) below unless thatfinding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely ft, the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon'ble Apex Court in the case of "Muhammud Sarwar und others vs. Hashmal Khan and others" PLD 2022 S Court 1.1. where in para-6 it was held that it is well settled exposition of law, deducible fro* plethora of dictums laid down by superior Courts that section ll5, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordtnate court is within its iurisdiction; the case ,s one in which the Court ought to exercise jurisdictton and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with matertal irregulariQ or by committing some error of procedure in the course of the trial which afficted the ultimate decision. If the High Court

is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions offact or law.

2.Even otherwise, the record clearly reflects that the learned appellate Court announced its judgment and decree on 20.11.2024. However, the petitioner failed to approach this Hon'ble Court within the prescribed statutory period. The instant revision petition was filed on 25.03.2025, aftet a considerable and unexplained delay of more than four months. This delay renders the petition prima facie barred by limitation under the provisions of the Limitation Act, 1908. Although an application for condonation of delay has been filed along with the petition, it fails to offer any cogent, reasonable, or legally sustainable explanation justifying the inordinate delay in invoking \ the revisional jurisdiction of this Court. It is a well- established principle of law that mere filing of such an application does not absolve the petitioner of the obligation to provide a satisfactory cause for the delay' In the absence of any valid justification, the revision petition is liable to be dismissed solely on the ground of limitation.

10.In view of the above discussion, the impugned judgments and decree of the two Courts below respectively dated 20.11.2024 and 30.06.2022 are neither the result of misreading and non-reading of evidence nor the petitioner could point out any material irregularity nor jurisdictional defect in the same, therefore, the same are upheld and maintained and consequently the instant revision petition is dismissed.

Announced (>\,

Tahir Saleem ?c

TUDGE