2014 SCMR 1025 Waris Versus Muhammad Sarwar Supreme-Court

2014 S C M R 1025

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Amir Hani Muslim and Muhammad Ather Saeed, JJ

WARIS—Appellants

Versus

MUHAMMAD SARWAR—Respondent

Civil Appeal No.682 of 2010 out of Civil Petition No.1598 of 2009, decided on 11th February, 2014.

(On appeal from the judgment dated 27-4-2009 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No.228 of 2004)

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)—

—-S. 13—Civil Procedure Code (V of 1908), O. VI, R. 17—Suit for pre-emption—Findings of Trial Court not challenged before Appellate Court—Effect—Past and closed transaction—Scope—Pleadings, amendment of—Pre-emptor did not state in his plaint the date, time and place where he received the information about the subject sale, but subsequently filed an application under O.VI, R. 17, C.P.C. for amending the plaint by mentioning the said date, time and the place—Said application was allowed by the Trial Court on the payment of cost and such cost was also received by the vendee—Vendee did not challenge such order of Trial Court before any forum—Trial Court while dilating upon the issue as to whether pre-emptor had fulfilled the requirements of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987, answered the issue in positive and this was neither challenged by vendee in appeal nor any cross objections were filed against it at the time of filing appeal before the first Appellate Court—Vendee in such circumstances was barred from raising such point before the Supreme Court because it had become a past and closed transaction, and could not be re-opened as it had attained finality—Appeal was dismissed accordingly.

Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23 distinguished.

Sultan alias Sultan Ahmed v. Mehr Nawazish Ali and another 1971 SCMR 185; Khairati and 4 others v. Aleemud-Din and another PLD 1973 SC 295; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Abdul Rashid Awan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 11th February, 2014.

JUDGMENT

MUHAMMAD ATHER SAEED, J.—This petition for leave to appeal has been filed against the judgment of the learned Peshawar High Court, Abbottabad Bench dated 27-4-2009 passed in Civil Revision No.228 of 2004, whereby the learned High Court had dismissed the appeal filed by the present petitioner against the judgment of the learned District Judge, Haripur dated 20-7-2004 in Civil Appeal No.1/13 of 2003, who had allowed the appeal of the present respondent against the judgment of the Civil Judge, Haripur dated 18-11-2002 in Suit No.373/1 of 2002 and had decreed the suit filed by the present respondent.

2. Leave to appeal was granted by this Court vide its order dated 9-8-2010, which reads as under:–

“(2) It is, inter alia, contended that the judgment impugned is not in consonance with the dictum laid down in case Muhammad Nawaz v. Firdous Begum (2008 SCMR 404) and besides that the plaint could not have been amended as the entire structure has been changed and besides that no details qua date, time, and place were mentioned in the notice which escaped notice of learned High Court causing serious prejudice against the petitioner.

(3) The above contention needs consideration. Accordingly, this petition is converted into appeal which may be fixed at some early date since a short question of law is involved. Meanwhile, status quo is directed to be maintained.”

3. Brief facts of the case are that the present respondent had pre-empted the sale made to the present petitioner/vendee on 16-3-1993 at Deegar Vela and after sending the notice of Talb-i-Ishhad filed the suit during the period of limitation. Initially the suit was dismissed by the trial Court against which the present respondent filed an appeal before the appellate Court and the appellate Court had by its judgment remanded the case back to the Civil Court to re-write the judgment after hearing the parties on merits. In the second round of litigation, the suit was decreed by the learned trial Court as the learned trial Court reached the conclusion that the suit was hit by waiver.

4. Being aggrieved by the judgment of the trial Court, the present respondent filed an appeal before the appellate Court, who vide judgment mentioned above allowed the appeal and decreed the suit of the respondents. It is pertinent to mention here that at this point the present appellant had not filed any cross-objection or any appeal against the issues decided against him before the appellate Court. Being aggrieved by order of the appellate Court the present respondent filed a revision petition before the learned High Court, which was dismissed by the impugned judgment. Hence this appeal.

5. We have heard Mr. Zulfiqar Khalid Maluka, learned Advocate Supreme Court for the appellant and Mr. Abdul Rashid Awan, learned Advocate Supreme Court for the respondent.

6. After reading the contents of the leave granting order reproduced above, the learned Advocate Supreme Court appearing for the appellant submitted that initially when the suit was filed on 12-5-1993 the present respondent had not stated in the plaint the date, the time and the place on which he received the information about the subject sale but on 6-12-1995 he filed an application under Order VI, Rule 17 of the C.P.C. for amending the petition by mentioning the date, the time and the place when and where he received the information of the subject sale. He further submitted that on the same day he also filed an application under Order VII, Rule 11 of the C.P.C. for rejection of the plaint for reasons that the present respondent had not mentioned the date, the time and the place in the plaint. Both these applications were disposed of vide order dated 6-12-1995 passed by the Civil Judge, Haripur in Suit No.684/1 of 1995, the application under Order VI, Rule 17, C.P.C. filed by respondent being allowed and the application under Order VII, Rule 11 filed by appellant being dismissed. He candidly conceded that he had never challenged this order before any forum whatsoever and had also recovered the cost of Rs.200 imposed on the respondent. He, however, argued that he was not estopped from challenging the same before the higher forum during the hearing of appeal filed by the respondent and his revision before the High Court and this Court. On this point he relied on the judgment of this Court in the case reported as “Ghulam Yasin and others v. Ajab Gul (2013 SCMR 23)”, wherein this Court had dismissed an amendment application moved before it to mention the date, the time and the place in the plaint of pre-emption and relied on the observation of this Court for this purpose. He, therefore, argued that for the purpose of determining whether the Talb-i-Muwathibat was performed properly and correctly the original plaint has to be seen and not the amended plaint and since the date, the time and the place has not been mentioned in the original plaint in accordance with the judgment of this Court reported as “Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others (PLD 2007 SC 302)”, the non-mentioning of these particulars is fatal to the pre-emption suit which cannot be sustained. Without prejudice to his above arguments the learned Advocate Supreme Court submitted that although the respondent had amended the plaint to include the required particulars but in the notice of Talb-i-¬Ishhad he has not mentioned the date, the time and the place of the information received by him and this is also fatal to his case. In this connection he relied on the judgment of this Court in the case reported as “Sardar Muhammad Nawaz v. Mst. Firdous Begum (2008 SCMR 404)”, whereby this Court has held that in the notice of Talb-i-Ishhad it is necessary to mention the date, the time and the place when and where the information was received. He, therefore, prayed that the appeal may be allowed and the judgment of the appellate Court and the impugned judgment being against the legal and factual position of the case may be set-aside and the order of the trial Court be restored.

7. The learned Advocate Supreme Court for the respondent strongly opposed the arguments of the learned Advocate Supreme Court for the appellant and supported the impugned judgment. He submitted that in the year 1995, the Peshawar High Court for the first time had held that it was necessary to mention the date, the time and the place when and where the information was received and the demand was made and, therefore, he had immediately applied under Order VI, Rule 17 of the C.P.C. for the amendment of the plaint and on the same day, the present appellant had also filed an application under Order VII, Rule 11 of the C.P.C. for rejection of plaint because it had not contained those particulars mentioned-above. The learned trial Court dismissed that application under Order VII, Rule 11 of the C.P.C. and allowed him to amend the plaint on payment of cost of Rs.200. He further submitted that the appellant did not challenge this order before any forum and immediately collected the cost and even when the trial Court while passing the order, rejecting the plaint on the basis of waiver, decided the issue of performance of Talbs in favour of the respondent. The appellant neither filed an appeal against it nor filed any cross objection before Appellate Court when the respondent filed an appeal against the judgment of the trial Court and is, therefore, barred from raising the point before the High Court and this Court. On this point he relied upon the following judgments:–

(1) Sultan alias Sultan Ahmed v. Mehr Nawazish Ali and another (1971 SCMR 185),

(2) Khairati and 4 others v. Aleemud-Din and another (PLD 1973 SC 295),

(3) Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) and

(4) Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others (1996 SCMR 1862).

He, therefore, submitted that the question of amendment of application being allowed is a past and closed transaction and cannot be argued at this stage either before the learned High Court or before this Court. He, therefore, prayed that the appeal being merit-less may be dismissed.

8. We have examined the case in the light of the arguments advanced by the learned ASCs for the parties and- have carefully perused the records of the case including the impugned judgment, the judgments of the lower fora, the order granting the amendment of application under Order VI, Rule 17 of the C.P.C. and rejecting, the application under Order VII, Rule 11 of the C.P.C. and the judgments relied on by the learned ASCs for the parties.

9. In the leave granting order, it is seen that leave was granted, inter alia, on two points one that the plaint could not have been amended as the entire structure had been changed and that in the notice of Talb-i-Ishhad no details qua the date, the time, and the place were mentioned which is against the dictum laid down by this Court in the case of Sardar Muhammad Nawaz quoted (supra). Although the word “inter alia” has been used in the leave granting order but the learned Advocate Supreme Court for the appellant had only argued before us on these two points. As far as the first point is concerned, it is an admitted fact that the application under Order VI, Rule 17 of the C.P.C. was allowed and the application under Order VII, Rule 11 of the C.P.C. was rejected vide order passed by the trial Court on the payment of cost and this cost was received by the appellant and he had not challenged this order before any forum. It is also an admitted fact that the trial Court while dilating upon issue No.6 i.e. “whether the plaintiff has fulfilled the requirements of section 13 of the N.-W.F.P. Pre-emption Act, 1987”, has answered this issue in positive and this was neither challenged in appeal nor any cross objections were filed when the present respondent filed an appeal before the first Appellate Court. We are, therefore, of the view that the appellant is barred from raising this point now because it has become a past and closed transaction.

10. On this point the learned Advocate Supreme Court for the appellant has relied upon the judgment of this Court in the case of Ghulam Yasin quoted (supra), whereby a learned Division Bench of this Court has rejected the application for amendment of plaint to fill in the gaps in the plaint. This case is distinguishable because the application was filed at the stage of Supreme Court long time after filing the suit and the question of collecting the cost and not challenging the order and allowing the amendments in the plaint are not the ingredients of this case.

11. In the case of Sultan alias Sultan Ahmed quoted (supra), relied on by the learned Advocate Supreme Court for the respondent, this Court has held that if the amendment was allowed by the trial Court on payment of cost and the party had moved for revision before the High Court, but during the pendency of revision, had accepted the cost in Court below, then the learned High Court was justified in the circumstances to dismiss the revision petition.

12. In the case of Khairati quoted (supra), this Court had held that the respondent cannot ask for variation of a decree without filing cross-objections.

13. In the case of Kanwal Nain quoted (supra), a larger Bench of this Court has held that where an appeal has been filed, seeking to challenge a decree was passed by the trial Court and no cross objection was filed by the appellant on the issues involving in this case, findings on such issues had attained finality and was not liable to be reopened at the appellate stage at the Supreme Court.

14. In the case of Muhammad Aslam quoted (supra), it was again held by this Court that where no cross objections were filed by the appellant on the issues involving in this case, finding on such issue had attained finality and was not liable to be reopened.

15. We are, therefore, of the view that finding of the trial Court on issue No.6 reproduced above on the basis of the fact that no cross objections were filed by the appellant before the first appellate Court, cannot be reopened because such finding had attained finality.

16. However, we have also examined the contention of the learned Advocate Supreme Court for the respondent that in accordance with the judgment of this Court in the case of Sardar Muhammad Nawaz quoted (supra) relied on by the learned Advocate Supreme Court for the appellant whereby it was held that in the notice of Talb-i-Ishhad, the date, the time and the place of information has to be mentioned and the reasons given in support thereof is that in the absence of such facts the question of issuance of notice of Talb-i¬-Ishhad within the statutory period of 14 days from the date of Talb-i-¬Muwathibat and filing a suit within a period of 120 days from the date of information of Talb-i-Muwathibat could not be properly decided.

17. We are of the opinion that for this purpose only the mentioning of date of making of Talb-i-Muwathibat in the notice of Talb-i-¬Ishhad is enough because the calculation of the limitation of period of 14 days and 120 days has to be made from the date of jumping demand and not from the time and place and while examining the notice of Talb-i¬-Ishhad, we have seen that the date of making of Talb-i-Muwathibat has been mentioned as 16-3-1993 in this notice, which in our view is enough to meet the requirements. We, therefore respectfully disagree with the judgment of the learned Division Bench of this Court mentioned above.

18. We are, therefore, of the considered opinion that the judgment of the first appellate Court and the impugned judgment are unexceptionable and no interference is called from this Court.

19. In view of the above discussion, this appeal being merit-less is, therefore, dismissed with no order as to costs.

MWA/W-1/SC Appeal dismissed.