Statement of dead man is admissible

PLJ 2004 Lahore 1538 [Rawalpindi Bench Rawalpindi] Present: MAULVI ANWAR-UL-HAQ, J WARIS KHAN (deceased) through L.Rs. and 8 others-Petitioner versus - MUHAMMAD IQBAL-Respondent C.R. No. 227/D of 2001, heard on 18.3.2004. (i) Civil Procedure Code, 1908 (V of 1908)-- —S. 115-Suit for pre-emption-Dismissal by trial Court-Appeal failed before District Court-Challenge to-Mode of making talbs-Question of- One of recognized modes of making talb-i-Ishhad is that same can be made in presence of witnesses at the property sought to be pre-empted- Talbs have been proved by producing witnesses who were named in plaint-None of witnesses stated word about Zarar or Zaroorat- Statement in plaint or notice which of course never reached respondent who admittedly was abroad would be of no avail to petitioner for simple reason that pleadings are not evidence—Notwithstanding fact that original plaintiff died cause of action survived to his L.Rs. who were brought on record and one of them even entered witness box-He opted to remain silent—Held: Findings of Courts below cannot disturbed—Petition dismissed. [Pp. 1539 & 1540] A, B & D (ii) Qamm-e-Shahadat Order, 1984 (10 of 1984)-- —Art. 46-Statement of dead man-Admissibility-Statement of a deadman is admissible for very limited purpose-Filing of suit for pre-emption and giving of notice of talb-i-Ishhad is not business as envisaged by Art. 46 as would be apparent from plain reading of said provision of law-In Somewhat similar circumstances very significant plea of subsequent vendee in terms of Section 27(b) of Specific Relief Act, 1877, was discarded by Supreme Court as he had died before he could support same. ' [P. 1540] C ' Ch. Afrasiab Khan, Advocate for Petitioners. Ch. M. Tariq, Advocate for Respondent. Date of hearing : 18.3.2004. judgment Vide Mutation No. 2743 attested on 18.1.1993 the respondent purchased the suit land for Rs. 5,00,000/-. On 17.5.1993 Waris Khan the predecessor4n-interest of the petitioners filed a suit for possession of the suit land by pre-emption. According to him, the land had, in fact, been sold for Rs. 1,00,000/-, He claimed to be a co-sharer. He pleaded talbs and also pleaded that he will suffer loss in case he does not get the suit land. The suit was resisted by the respondent. Issues were framed. Evidence* of the parties was recorded.' The learned trial Court found that the deceased plaintiff who died after filing the suit, was possessed with a superior right of pre-emption. He found that the land was purchased for Rs. 5,00,000/- as mentioned in the mutation. He dismissed the suit by holding that talbs have not been performed and that Issue No. 3 pertaining to zarar and Zaroorat stands unproved. The suit was dismissed on 21.7.2000. A learned ADJ, Chakwal, dismissed the first appeal of the petitioners on 14.3.2001 confirming the findings on the said issues. 2. Learned counsel for the petitioners contends that evidence in the matter of talbs has not been properly read. As regards zarar and zaroorat he contends that the statement made by the deceased-plaintiff in the plaint and the notice of talb-i-ishhad to the effect that he will suffer the loss in case he does not get the land would be admissible under Article 46 of the Qanun-e- Shahadat Order, 1984, being a statement of a dead person having been made in the normal course of his business. Learned counsel for the respondent, on the other hand, supports the impugned judgments and decrees by contending that the matter of zarar and zaroorat was a part of substantive law till 31,12.1993 when the judgment of the Hon'ble Shariat Appellate Bench, of the Supreme Court of Pakistan in the case of Haji Rana Muhammad Shabbir Ahmad Khan u. Government of Punjab, Lahore (PLD 1994 SC 1) took effect and there being no evidence on record of zarar or zaroorat, the learned Courts below have lawfully dismissed the suit. According to him, talbs have not been proved. 3. I have examined copies of the record. Now I find that in the plaint it was pleaded that the deceased-plaintiff came to know about the sale two days before the institution of the suit and made talb-i-muwathibat in presence of witnesses and then tried to contact the respondent who was abroad. He then proceeded to the suit land and made talb-i-ishhad and then issued a notice. Ghulam Mustafa PW-1 and Suba Khan PW-2 before whom, according to the contents of the plaint, talb-i-muwathibat was made, have appeared and deposed accordingly. They have further stated that the respondent was abroad and as such the petitioner went to the suit land and made a talb-i-Ishhad in their presence. I have examined the said statements and find that nothing derogatory turned out in the cross-examination. To my mind talb-i-muwathibat stood proved and so did the talb-i-ishhad. One of the recognized modes of making of talb-i-ishhad is that the same can be made in presence of witnesses at the property sought to be pre-empted and this has been proved to have been done. Reference be made to the case of Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others (1991 SCMR 2001). 4. The said argument of Ch. Afrasiab Khan in the matter of zarar and zaroorat despite its ingenuity however fails to impress me. It will be seen that the talbs as pleaded in the plaint, according to my own reading of the record, have been proved by producing the witnesses who were named in the plaint. Now none of the said witnesses and the PW-3, a son of the deceased- plaintiff, have stated a word about zarar or zaroorat. The said statement in the plaint or notice Ex. P.I which, of course, never reached the respondent who admittedly was abroad would be of no avail to the petitioner for the simple reason that pleadings are not evidence. The primaiy purpose is to enable the parties to set down their respective pleas so as to further enable them to prove the same in the course of trial. Notwithstanding the fact that the original plaintiff died the cause of action survived to his LRs who were brought on record and one of them even entered the witness box. He opted to remain silent on the said issue. 5. Needless to state that Article 46 of the Qanun-e-Shahadat Order, 1984 makes the statement, inter alia, of a dead person admissible for the veiy limited purpose noted therein. Learned counsel thought to argue that the said plaint and notice would constitute statement having been made in the normal course of business. I am afraid that filing of a suit for pre emption and giving of a notice oftalb-i-Ishhad is not a business as envisaged by Article 46 of the Qanun-e-Shahadat Order, 1984 as would be apparent from a plain reading of the said provision of law. In the second no notice foundation stands laid in the pleadings or in the evidence to even consider as to whether Article 46 would apply or not. In somewhat similar circumstances a very significant plea of a subsequent vendee in terms of Section 27 (b) of the Specific Relief Act, 1877, was discarded as he had died before he could support the same in the witness box in the case of Mst. Khair-un-Nisa and 6 others versus Malik Muhammad Ishaque and two others, (PLD 1972 SC 25), 6. I, therefore, do confirm the findings of the learned Courts below on Issue No. 3. The civil revision is accordingly dismissed without any orders P as to costs. (B.T.) Petition dismissed.