Muhammad Idrees Vs Hafiz Muhammad Yaqoob etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

RFA No. 49-D of 2011

JUDGMENT

Date of hearing 22.02.2016

Appellant-petitioner Muhammad Idress by Syed Mastan Ali Zaidi Advocate

Respondent Hafiz Muhammad Yaqoob by Ahmad Ali Khan Advocate

MUHAMMAD GHAZANFAR KHAN, J.- Through the instant appeal under section 96 C.P.C, the appellant Mohammad Idrees has called in question the judgment and decree dated 19.5.2011 rendered by learned Civil Judge, Kulachi camp D.I.Khan, whereby his suit was dismissed.

2.The brief facts giving rise to the instant appeal are that the petitioner filed a suit against respondents for possession through pre-emption of shop No.C/4962 situated in Bhatia Bazar, D.I.Khan, detailed in the heading of the plaint.

3.The respondents contested the suit by submitting their written statement. The learned trial Court

framed issues from the pleadings of the parties. The parties produced their respective evidence as they wished to adduce and after hearing the arguments of learned counsel for the parties, the learned Civil Judge, Kulachi camp at D.I.Khan dismissed the suit vide judgment and decree dated 19.5.2011, hence the instant appeal by petitioner.

4.The learned counsel for appellant argued that under section 34 of NWFP Pre-emption Act, 1987, the provisions of Code of Civil Procedure, 1908 and law of evidence shall mutatus mutandi apply to the proceedings under this Act, so, the application for summoning postman as a witness was wrongly turned down by the Court below. He further argued that the learned trial Court has dealt with the application in a cursory manner and has not decided the same prior to deciding the whole case which was incumbent upon it. He also referred to Order 16 Rule 1 C.P.C and Order 41 Rule 27 C.P.C and contended that under Order 41 Rule 27 C.P.C, this Court is empowered to record additional evidence if so required.

Similarly, under Order 16 Rule 1 C.P.C, the trial Court is also empowered to summon any witness whose name does not figure in the list of witnesses, so, at the first instance, he solicited for remand of the case to the trial

Court for deciding the application for production of postman and then deciding the case on merits. He maintained that even otherwise, the appellant has proved his case through cogent and reliable evidence particularly regarding talbas and non-production of postman is not fatal to non-suit the appellant. He argued that the learned trial Court has passed the judgment without going through the record and decree based on flimsy grounds cannot hold the field under the law.

5.On the other hand, learned counsel for respondents strongly supported the judgment of trial Court and argued that the judgment and decree of trial Court is well reasoned, self contained and has been passed after proper scrutiny of the evidence available on the record and the application for production of postman was rightly dismissed by the trial Court as even acceptance of application would not have advanced the cause of appellant.

6.I have heard the arguments of learned counsel for the parties and have gone through the record.

7.Before discussing merits of the case, let the point raised by learned counsel for the appellant for decision of application for production of additional

evidence be taken first. There is no cavil with the proposition that the provisions of C.P.C have been made mutatus mutandi applicable to the NWFP Pre-emption Act, 1987, however, the Court cannot apply every provision without application of judicial mind. In the present case, it is evident from the record that the registered notice was not received by respondents themselves and it has allegedly been received by one Arif, who is neither the defendant nor lawful attorney of the defendants. The summoning of witness has been solicited in the application, who has effected the service through registered A/D upon the respondents. As stated above, the record clearly and loudly depicts that the registered envelope was never received by the defendants, so, it will be a futile exercise to indulge in a controversy which is neither beneficial to the appellant nor can in any way affect merits of the case. In 2013 SCMR 721 it was held that service of notice even on one of the vendees should not be presumed to be service on both the vendees.

Similar view has been taken in 2013 SCMR 866 by holding that:-

“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.”

In the present case, summoning of postman would also not serve any purpose as admittedly the notice talb-e- ishhad was received by a person who is alien to the litigation. In 2007 SCMR 1105 it was held that:- “The requirement of, “sending a notice in writing” is followed by a rider i.e. “under registered cover acknowledgment due”. This signifies that the intention of law is not merely a formal notice on the part of the pre- emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere “sending of notice” is enough would make the expression “acknowledgement due” redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of “refusal” or “not accepted”, a presumption of service would arise unless it is rebutted.”

Similar view has been taken by their lordships in 2013 PSC 1362. So, the application was rightly turned down by the trail Court.

8.Now coming to the merits of the case, suffice it to say that when performance of talb-e-ishhad is not proved in the light of above observations, there is no need to discuss further merits of the case. The findings of

learned trial Court are based on proper appreciation of evidence and law on the subject and need no interference.

9.For the reasons mentioned above, the instant appeal being bereft of any merit and substance is hereby dismissed.

Announced.

Dt:22.02.2016.

Habib/* JUDGE