Case Judgement 12/03/2020, 8)17 AM

2014 C L C 188

[Lahore]

Before Shujaat Ali Khan, J

Professor Syed KHURSHID ALAM----Appellant

Versus

Ch. MUHAMMAD ASLAM----Respondent

First Appeal from Order No.9 of 2010, Civil Revision No.1508 and Criminal Original No.90 of 2012,
decided on 8th April, 2013.

(a) Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Essential ingredients stated.

For grant of temporary injunction, a party has to prove three ingredients viz prima facie case in his
favour, balance of convenience tilts in his favour and in case the sought injunction is not granted, he
would suffer an irreparable loss.

(b) Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Transfer of Property Act (IV of 1882), S.52---Punjab Pre-emption Act (IX of
1991) Ss.6 & 13---Pre-emption suit---Plaintiff's application under O.XXXIX, Rr.1 & 2, C.P.C. to restrain
defendant from alienating suit-land and changing character thereof during pendency of suit---Validity---
Balance of inconvenience could not be said to lie in plaintiff's favour before proving his superior right and
performance of talbs on basis of evidence---Question of prima facie case in favour of plaintiff would be
determined after scanning evidence of parties---Principle of lis pendens would take care of alienation of
suit-land by defendant during pendency of suit---Injunctive order would deprive defendant of his vested
right to use suit-land as its owner according to his choice---Application for temporary injunction was
dismissed in circumstances.

Gul Zare Khan v. Zafarullah 2011 MLD 138 rel.

(c) Civil Procedure Code (V of 1908)---

----O. XVI, R. 1 & O. XIII, R.2---Summoning of witness and production of additional evidence by a
party---Powers of court---Scope---Court at any stage could allow any party to adduce additional evidence
oral as well as documentary, but subject to showing sufficient cause for non-production of evidence at
relevant time and necessity of evidence of such witness for just decision of case---Additional evidence
could not be allowed to fill up lacunae by a party.

Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Iqbal Parekh and 4 others v.
Karachi Building Control Authority (K.B.C.A.) through Chief Controller of Buildings (C.C.O.B.) Karachi
and 4 others 2008 CLC 1334; Mst. Rukhsana Bibi v. Muhammad Ansar 2006 YLR 666; Haji Muhammad
Tufail v. Muhammad Iqbal 2005 MLD 688; Arshad Ali and another v. Abdul Rashid and 2 others PLD

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1980 Lah. 382; Haq Nawaz v. Muhammad Kabir 2009 SCMR 630; Akbar Khan and 6 others v. Allied
Bank of Pakistan through President and 2 others 2011 YLR 496; Kohinoor Industries Limited Project
Kohinoor Textile Mills Ltd. through Chief Executive v. Sargodha Spinning Mills Limited through Chief
Executive and 2 others 2005 CLC 1781 and Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal PLD
2007 Lah. 377 ref.

Mst. Nasreen Akhtar v. Mohsin Ali 2011 CLC 1206 rel.

Manzoor Hussain Dogar for Appellant.

Naveed Ahmad Khawaja for Respondent.

ORDER

SHUJAAT ALI KHAN, J.--- Through this single order I intend to dispose of this appeal as well
as Civil Revision No.1508 of 2012 and Criminal Original No.90 of 2012 as all these matters have
emanated out of a suit for possession through pre-emption filed by Professor Syed Khursheed Alam
(hereinafter to be referred as appellant/petitioner) against Ch. Muhammad Aslam (hereinafter to be
referred as respondent).

2. Succinctly, the appellant/petitioner instituted a suit for possession through pre-emption qua landed
property situated within the revenue estate of village Manawan Tehsil Cantt. District Lahore. Along with
the said suit, the appellant also filed an application for temporary injunction which was dismissed by the
learned trial Court vide order dated 16-12-2009 against which the appellant has instituted the present
appeal. In addition thereto, during pendency of the suit the appellant/ petitioner also filed an application to
produce secondary evidence which was dismissed by the learned trial Court vide order dated 12-4-2012
against which the appellant/petitioner has filed Civil Revision No.1508 of 2012 whereas Criminal
Original No.90 of 2012 has been filed with the grievance that the respondent has changed the
character of the property in dispute in presence of the restraint order issued by this Court vide
order dated 14-1-2010 passed in Civil Miscellaneous No.1 of 2010.

3. Learned counsel for the appellant/petitioner in support of his appeal submits that since the
appellant fulfils all the conditions for grant of temporary injunction, his application for the same relief
was illegally dismissed by the learned trial Court; that in case during pendency of the suit the respondent
is allowed to alienate the property in any manner whatsoever the same would lead to multiplicity of
proceedings which being against the spirit of law cannot be approved; that in case the character of the
property is changed during pendency of the suit in the eventuality of the success of the
appellant/petitioner, the loss occurred to him due to the said act of the respondent, would not be made
good.

4 In support of Civil Revision No.1508 of 2012, the learned counsel for the appellant/petitioner
contends that due to some inadvertence, instead of original postal receipt another receipt was exhibited by
the learned trial Court despite the fact that in the List of Reliance the mention of Receipt No.1180 dated
27-8-2005, is very much present; that since the original notice of Talb-i-Ishhad was sent to the respondent,
therefore, only copy was left with the appellant/petitioner which was produced by him before the learned
trial Court and instead of exhibiting the same in a proper way the same was only marked; that to prove the
contents of Postal Receipt No.1180 dated 27-8-2005, intending to be produced by the appellant in the
secondary evidence the examination of postman concerned is inevitable; that though the name of the said
witness is not mentioned in the list of witnesses, however, under Order XVIII, rule 4, C.P.C. the court is
bound to record his testimony and that in case the appellant is not allowed to produce secondary evidence,
in addition to examination of the postman concerned, the appellant would suffer an irreparable loss and
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incalculable injury. In addition to his oral submissions learned counsel has relied upon the cases reported
as Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778), Iqbal Parekh and 4 others v.
Karachi Building Control Authority (K.B.C.A.) through Chief Controller of Buildings (C.C.O.B.) Karachi
and 4 others (2008 CLC 1334), Mst. Rukhsana Bibi v. Muhammad Ansar (2006 YLR 666), Haji
Muhammad Tufail v. Muhammad Iqbal (2005 MLD 688) and Arshad Ali and another v. Abdul Rashid and
2 others (PLD 1980 Lahore 382).

5. While arguing the contempt petition learned counsel for the appellant contends that since the
respondent has violated the injunctive order passed by this court his act deserves stern action by this
Court.

6. On the other hand learned counsel appearing on behalf of the respondent, while opposing the
prayer made in this appeal, submits that since the appellant/petitioner has to establish his superior right of
pre-emption and performance of requisite talbs the ingredients necessary for the grant of temporary
injunction are missing in his case, therefore, the learned trial Court has rightly dismissed the application
filed by the appellant/petitioner; that the right of the appellant/petitioner is fully secured under the
principle of lis pendens; that even according to the contents of the plaint of the suit, there is a little chance
of the appellant/petitioners' success.

7. While opposing the claim made in the Civil Revision No.1508 of 2012 learned counsel contends
that he has no objection if the postal receipt as well as notice of Talb-i-Ishhad are exhibited in evidence
but to the extent of the examination of postman the appellant/petitioner contests on the ground that the
evidence of both the parties has been concluded; that the name of the postman does not figure in the list of
witnesses filed by the appellant/petitioner; that no reason has been advanced for non-production of the
said witness by the appellant/petitioner while producing his evidence in affirmative; that the respondent
has already exposed his defence and in case the postman is allowed to be examined, his case would be
prejudiced and that appellant/petitioner cannot be allowed to fill up the lacunas in his case by producing
the postman at such a belated stage and that too in a pre-emption suit.

8. While dealing with the prayer contained in the contempt petition, learned counsel submits that the
respondent has not violated any order passed by this court, therefore, the contempt petition deserves to be
dismissed. In support of his oral submissions learned counsel has referred to the cases reported as Haq
Nawaz v. Muhammad Kabir (2009 SCMR 630) and Akbar Khan and 6 others v. Allied Bank of Pakistan
through President and 2 others (2011 YLR 496) and Kohinoor Industries Limited Project Kohinoor Textile
Mills Ltd. through Chief Executive v. Sargodha Spinning Mills Limited through Chief Executive and 2
others (2005 CLC 1781) and Muhammad Zahid Pervaiz v. Muhammad Shafqat Iqbal (PLD 2007 Lahore
377).

9. Learned counsel for the appellant/petitioner, while exercising his right of rebuttal, submits that by
recording evidence of the postman no prejudice would be caused to the respondent rather the same would
further the cause of justice. Further adds that respondent would be at liberty to discard the credibility of
said witness by putting him to the test of cross-examination. Moreover, the respondent can lead evidence
in rebuttal.

10. I have heard learned counsel for the parties and have also gone through the documents appended
with this petition in addition to the case-law cited at the bar.

11. Firstly while dealing with the question regarding dismissal of the application of the appellant filed
under Order XXXIX, Rules 1 and 2, C.P.C., I am of the view that while filing the said application the
appellant/petitioner prayed as under:---

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"In the light of afore-said submissions it is accordingly prayed that the respondent may kindly be
instructed from further alienating the suit-land and also be restrained from changing nature and character
of the suit-land. The respondent may also be restrained from putting the suit-land to any other use
whatsoever. All these reliefs may kindly be granted to the applicant till the final decision of the titled suit".

12. For grant of temporary injunction, a party has to prove three ingredients viz prima facie case in his
favour, balance of inconvenience tilts in his favour and in case the sought for injunction is not granted, he
would suffer an irreparable loss. Insofar as the case in hand is concerned, the appellant/petitioner has filed
a suit for possession through pre-emption which is to be decreed after adjudging the superior right of the
appellant/petitioner and the performance of requisite talbs. Until and unless, the claim of the
appellant/petitioner is established after recording of evidence, it cannot be said that balance of
inconvenience in any manner lies in his favour. Further, the question of prima facie case in favour of the
appellant/plaintiff would also be seen by the learned trial Court after scanning the evidence of the parties.
As far as the question of irreparable loss is concerned, suffice it to observe that the question of alienation
by the respondent during pendency of suit would be taken care of under the principle of lis pendens in
case the appellant/petitioner succeeds in his suit. Insofar as to the extent of restraint order for changing
nature and character of the suit-land is concerned, I am of the view that respondent, being owner, is vested
with the right to utilize the property according to his own choice and any injunctive order against exercise
of his rights would cause irreparable loss to him as compared to the appellant/petitioner. An injunctive
order cannot be issued in favour of the plaintiff of a pre-emption suit as a routine as the same would
amount to deprive of the vendee from his vested right. Reliance in this regard is placed on Gul Zare Khan
v. Zafarullah (2011 MLD 138). This court in the case of Muhammad Zahid Pervaiz (supra) has inter alia
held as under:---

"In the pre-emption suits, I am of the view that the injunctive order should not be lightly granted
because the vendee/defendant in such cases is the absolute and exclusive owner of the property till the
time the decree for the pre-emption is passed in favour of a pre-emptor. Without going into the question,
whether the right of pre-emption is predatory or otherwise, but it is settled, that the decree for the pre-
emption under the Act, 1991 is subject to a very important proof about the making of two Talbs about
which, it cannot be prima facie ascertained, whether the Talbs have been made or otherwise, especially
this shall be true for Talb-e-Muwathibat. Thus, even if the pre-emptor has prima facie established his right
of pre-emption on the record, till the owner of the property cannot be put under restraint to use his
property, which may tantamount to the breach of his fundamental right as enshrined by Article 23 of the
Constitution of Islamic Republic of Pakistan, 1973. The injunction, therefore, should not be ordinarily
granted regarding the suit property which is a bare land, and the claim of the plaintiff/pre-emptor is to
simply restrain the vendee/defendant from the improvement of his property till the final decision of the
case, which may take years for its final adjudication. Obviously, the development and the improvement of
the land made by the vendee during the pendency of the case shall be at his own risk and cost and he shall
not be entitled to any compensation for the construction/development etc. from the pre-emptor made after
the institution of the suit.

However, where a suit for the pre-emption has been filed with regard to any property having a
superstructure, which is a part of the sale and the vendee intends to demolish the superstructure in order to
defeat the right of substitution of the pre-emptor, may be the Court, on the basis of the facts of that case, is
inclined to grant the injunction. But, in the instant case, this is not the position, and the petitioner only
wants to prevent the respondent/vendee from improving his property by raising the construction. When
questioned in this behalf Mr. S.M. Masud, learned counsel for the petitioner, states that in this manner, the
access to the petitioner's land shall be so what hindered. This is not the case of the petitioner even in his
application and he has also not been able to prove any right of easement from the suit-land or any other
legal obligation on part of the respondent not to raise the construction over the property which he has
validly purchased".
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13. The sequel of the above discussion is that the learned trial Court has committed no illegality while
dismissing the application filed by the appellant/petitioner under Order XXXIX, rules 1 and 2, C.P.C.

14. Insofar as the case-law cited by the learned counsel for the appellant/petitioner on this point is
concerned, I am of the humble view that the same is not applicable to the facts and circumstances of the
present case inasmuch as in the said case only order was passed to the extent of status quo whereas
according to the contents of the application filed by the petitioner/appellant, he sought an injunction
restraining the defendant to alienate the property in dispute in addition to changing its character.

15. Now coming to the claim of the petitioner/appellant contained in Civil Revision No.1508 of 2012,
I am of the opinion that since the factum of the original postal receipt has not only been mentioned in the
list of documents submitted by the appellant/petitioner but the same is also proved from the fact that some
other receipt was exhibited in evidence during the course of documentary evidence. Likewise, it is of
common knowledge that the original notice of Talb-e-Ishhad, as contemplated under section 13(3) of the
Act, is sent to the defendant and copy thereof is retained by the pre-emptor. Admittedly, not only the
appellant/petitioner has produced the witnesses of Talb-e-Ishhad but has also produced copy of notice
which has been marked by the learned trial Court. In this backdrop, the learned counsel for the respondent
has wisely opted not to oppose the prayer to the extent of exhibition of the postal receipt and the notice as
secondary evidence.

16. Insofar as the request of the learned counsel for the appellant/ petitioner that permission be granted
to examine the postman is concerned, I am of the view that there is no cavil with the proposition that the
court has ample power to allow any party to adduce additional evidence oral as well as documentary,
however, the same power is subject to the condition that there are sufficient reasons for non-production of
the evidence at the relevant time and the evidence of the said witnesses is necessary for the just decision
of the case. Admittedly, neither the name of the postman has been mentioned in the list of witnesses
submitted by the appellant/petitioner nor the appellant/ petitioner submitted any application for recording
of his evidence while producing evidence in affirmative. Further a perusal of the application filed before
the learned trial Court shows that no reason for non-production of the said witnesses at the relevant time
has been mentioned. The reason advanced by the appellant/petitioner for production of the postman is to
prove the contents of Postal Receipt bearing No.1180 dated 27-8-2005. In this respect I do not find myself
in agreement with the learned counsel for the appellant/petitioner for the reason that if production of
postman as witness was so important to prove the contents of the postal receipt the appellant/petitioner has
not come forward with the reasons that why the said postman was not produced while earlier producing
the receipt in evidence which could not be marked due to some inadvertence rather some other receipt was
exhibited by the trial Court. As the respondent has already showed no objection to the exhibition of the
said receipt, therefore, the reason advanced by the appellant/petitioner for production of the postman has
no worth.

Considering from another angle admittedly the case is pending announcement of decision after
completion of evidence of the parties and the petitioner/appellant having come to know about the fact that
he could not produce the postman concerned to establish the delivery of notice of Talb-e-Ishhad to the
respondent, he has filed the instant application to makeup the deficiency during the course of evidence.
There is no denying the fact that additional evidence can be allowed to be produced at any stage but the
same should not be aimed to fill up the lacunas of any party. In this case reliance is placed on the case
reported as Mst. Nasreen Akhtar v. Mohsin Ali (2011 CLC 1206), wherein it has inter alia been held that--
-

"The rationale behind said provisions to ensure that parties produce their evidence in one go and
not in piecemeal, yet provide discretion to a court of law, to allow evidence to be produced only in order
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to render complete justice. Surely, this clear and vast authority with the court of law should not be
exercised to allow one party to improve his case or to provide a second chance to him to fill up the lacunas
in the case".

17. Since the appellant/petitioner is bound to prove Talb-i-Ishhad on the basis of evidence adduced
by him, he cannot be allowed to fill up the gap by allowing production of the postman especially
when no plausible reason for his non-production at the relevant time has been advanced.

18. Insofar as the case-law cited by the learned counsel for the petitioner on this point is concerned, I
am of the view that the same is not applicable to the facts and circumstances of the present case inasmuch
as in the case of Zar Wali Shah (supra) the matter was remanded back by the Hon'ble Supreme Court of
Pakistan in view of the agreement arrived at between the parties. Further, in the said case the learned trial
Court failed to collect the evidence despite reasonable grounds were taken by the concerned party.
Likewise in the cases of Haji Muhammad Tufail, Mst. Rukhsana Bibi and Iqbal Parekh and four others
(supra) the question involved was consequences of non-filing of the list of the witnesses by a party
within seven days of framing of issues and no question of additional evidence was involved in the
said cases.

19. Insofar as the contempt petition is concerned, I am of the view that a perusal of order dated 14-1-
2010 shows that the respondent was not restrained in clear-cut words from raising and demolishing any
construction by virtue of order dated 14-1-2010 passed in Civil Miscellaneous No.1-C of 2010 rather only
operation of the impugned order dated 16-12-2009 was suspended. Further, the said order was till the next
date of hearing viz 3-2-2010 and it was specifically mentioned that in case the same is not specifically
extended the same shall not continue. A perusal of the order sheet shows that the same was not extended
on any subsequent date. Moreover, the matter of contempt is between the court and the contemner I am of
the view that since the respondent is owner of the property in dispute he has the choice to use it according
to his whims and no order curtailing his vested rights can be passed.

20. For what has been discussed above, I am of the view that the necessary ingredients for grant of
temporary injunction are missing in the case of the appellant. Thus, the learned trial Court has committed
no illegality while dismissing the application filed by the appellant/petitioner for grant of temporary
injunction. Consequently, this appeal is dismissed.

21. Insofar as the revision is concerned, the appellant/petitioner has made out a case to the extent of
exhibition of postal receipt and the notice of Talb-i-Ishhad. Consequently, this petition to that extent is
accepted and learned trial Court is directed to exhibit the postal receipt and the notice of Talb-i-Ishhad
referred above as secondary evidence. As far as the recording of statement of postman is concerned, the
appellant/petitioner has failed to point out any valid reason for his non-production at the relevant time,
therefore, this revision petition to that extent is dismissed.

22. Now coming to the contempt petition, after hearing the learned counsel for the parties and going
through the documents appended with this petition, I am of the view that no contempt has been committed
by the respondent, therefore, the same is dismissed. There is no order as to costs.

SAK/K-10/K Order accordingly.

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