Monday, 29 September 2014

Right of Pre-emption is activated on Talb-e-Muasabat

PLJ 2014 Peshawar 181
Present: Malik Manzoor Hussain, J.
GULL BAD SHAH--Petitioner
versus
FAZAL ELAHI--Respondent
C.R. No. 732 of 2008, decided on 21.2.2014.
----S. 115--Civil revision--Suit for pre-emptor--Neither witness was made in plaint nor any efforts were made to examine in trial Court--Petitioner was estopped by conduct to introduce new issue by way of additional evidence in order to till lacunas--Validity--It is well settled by now that talb-i-muwathibat is pre-requisite to activate very right of pre-emption and it is foundation on which building of pre-emption case stands--No omission fatal could be allowed to be supplied by means of an application for calling any witness at a latter stage or to amend plaint by assertion name of informer in plaint--Petitioner not only failed to mention name of informer and place where he received information but also failed to examine informer, so as to absolved himself of responsibility of production of informer in Court--Petitioner also failed to make any application before trial Court as well as in appellate Court for purpose, but for first time he made application before High Court--At that revisional stage, petitioner can not be allowed to fill lacuna or to defeat right of other party which had been accrued by act and omission of petitioner.           [P. 182] A, B, C & D
Mr. Zia-ur-Rehman, Advocate for Petitioner.
Mr. Khalid Mehmood, Advocate for Respondent.
Date of hearing: 21.2.2014.
Judgment
Through Instant revision petition, the petitioner has challenged the Judgment dated 09.09.2008, passed by the learned Additional District Judge-IV, Mardan, whereby appeal filed by the respondent was allowed and the Judgment and decree dated 09.05.2006, passed by the learned trial Court was set aside.
2. Briefly, the facts of the case are that the petitioner filed a suit for pre-emption fully described in the heading of the plaint. The suit was contested by the respondent and after recording pro and contra evidence, the learned trail Court decreed the suit of the petitioner through Judgment dated 09.05.2006 Being dissatisfied the respondent preferred appeal and the same was allowed through impugned Judgment dated 09.09.2008, hence the present revision petition.
3. Learned counsel for the petitioner contended that the petitioner was non suited on technical ground who otherwise through cogent evidence, proved his case. It was further contended that there was no need to produce the informer, any how the petitioner duly made an application for examining the informer in the appellate curt but the same was turned down on wrong footings.
4. Conversely, the learned counsel for respondent contended that it was pre-requisite for the petitioner to name the person who informed him. It was further contended that neither the witness (informer) was named in the plaint nor any efforts were made to examine him in the trial Court, therefore at this belated stage the petitioner is estopped by his conduct to introduce new issue by the way of additional evidence and that too in order to fill the lacunas.
Arguments heard and record perused.
5. It is well settled by now that the Talb-Muwathibat is pre-requisite to activate the very right of pre-emption and it is the foundation on which the Building of pre-emption case stands, that is why the learned Apex Court have consistently observed that the plaint of pre-emption case under the latest dispensation was more like an FIR of a criminal case, therefore, no omission howsoever fatal could be allowed to be supplied by means of an application for calling any witness at a latter stage or to amend the plaint by assertion the name of informer in the plaint. The petitioner failed to mention the name of informer, the exact place where he received the information from the informer and also this fact does not appear in the notice issued by the petitioner. The petitioner not only failed to mention the name of informer and the place where he received the information but also failed to examine the informer, so as to absolved himself of the responsibility of production of informer in the Court. The petitioner neither mentioned the name of informer in plaint nor in the list of witnesses, also failed to produce the require witness in the trial Court. Petitioner also failed to make any application before the learned trial Court as well as in the appellate Court for the purpose, but for the first time he made application before this Court. At this revisional stage, the petitioner can notbe allowed to fill the lacuna or to defeat the right of the other party which had been accrued by the act and omission of the petitioner. The learned appellate Court, under the circumstances of the case and after thrashing the material available on record has applied the correct law. No legal infirmity have not found by this Court in the impugned Judgment.
In view of what has been discussed above, this revision petition being devoid of any force, is dismissed.

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