YOUNAS KHAN and others vs Haji AJAB KHAN etc.
This petition for leave to appeal arose from the dismissal of an application filed under Section 12(2) of the Code of Civil Procedure 1908. The petitioners challenged a 1982 compromise judgment and decree, alleging that it was obtained through fraud and that the underlying 1978 sale deed executed by their predecessor-in-interest was forged. The trial court, appellate court, and High Court concurrently dismissed the application as frivolous. The Supreme Court of Pakistan upheld these decisions, noting that the predecessor-in-interest never challenged the sale deed during his lifetime, and the petitioners delayed taking action for two years after his death. The Court reiterated that concurrent findings of fact by lower courts, when cogent and convincing, cannot be interfered with unless there is a demonstrable misreading or non-reading of material evidence, or a grave legal infirmity, which was absent in this case. Consequently, the petition was dismissed and leave to appeal was refused.
- Can concurrent findings of fact by lower courts be interfered with in the absence of misreading or non-reading of material evidence?
- Whether an application under Section 12(2) of the Code of Civil Procedure 1908 can be sustained where the predecessor-in-interest never challenged the disputed transaction during his lifetime?
- Under what circumstances will the Supreme Court of Pakistan disturb concurrent findings of fact in a civil matter?
- Section 12(2), Code of Civil Procedure 1908
ORDER
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 14.6.2001 passed by the Peshawar High. Court, Peshawar, whereby writ petition preferred on behalf of petitioner has been dismissed and judgment of the learned appellate Court has been kept intact.
2. The controversy revolves around a chunk of land comprising 76 kanals 7 marlas bearing Khasra Nos, 7885 and 7886 situated in Mauza Muhammadzai, Tehsil and District Kohat, belonged to one Fanoos Khan (predecessor-in-interest of petitioner) who transferred the same in favour of Rab Nawaz Khan (Respondent No, 2) by means of registered sale-deed dated 22.4.1978. A dispute qua the same land arose between Rab Nawaz Khan (Respondent No, 2) and Ajab Khan (Respondent No, 1) which ultimately was resolved pursuant to a compromise executed between the parties and on the basis whereof the judgment/decree dated 7.9.1982 was passed. At this juncture the petitioners got up from slumber and made an application under Section 12(2) CPC assailing the judgment dated 7.9.1982 on the ground that it was obtained by deception, fraud and further alleged that the sale deed dated 22.4.1978 executed by Fanoos Khan in favour of Rab Nawaz Khan was fake and forged. The said application was dismissed by the learned trial Court vide judgment/decree dated 3.9.1989 being frivolous and vexatious. It is to be noted that learned trial Court had framed seven issues and also recorded the statement of Patwari of the Halqa. Being aggrieved an appeal was preferred which has been rejected by the learned District Judge by means of judgment/decree dated 27.3.1994 which was further assailed by way of writ petition which has been rejected vide judgment impugned, hence this petition.
3. We have heard Mr. Saeed Baig, learned ASC on behalf of petitioners at length, perused the entire record and gone through the judgment of learned trial and appellate Courts as well as the judgment impugned. After having gone through the entire record we are of the considered opinion that application under Section 12(2) CPC has rightly been dismissed being frivolous and vexatious.
It is neither a case of misreading of evidence nor non-reading of evidence but on the contrary the controversy has been set at naught by the learned trial and appellate Courts in accordance with law, findings whereof were affirmed by the learned High A Court which cannot be reversed without any justification which is lacking in this case. Fanoos Khan who, according to the petitioner, was victim of fraud had never voiced his grievance before any forum during his entire life and expired on 29.1.1986. The petitioners also kept quiet for two long years after his death and subsequently made a futile attempt to frustrate the judgment/decrees passed by the Court concerned. Besides that the property in question had changed different hands during the life time of Fanoos Khan. Had there been some fraud he would have surely come forward to save his property. The learned ASC attempted to argue that Fanoos Khan was unaware which contention hardly deserves any consideration being baseless. The concurrent orders of the three Courts below dismissing application under Section 12(2) CPC would not be open to interference by this Court. In this regard reference can be made to Majroza v. Said Akbar (1994 SCM R 679).
4. There is no cavil with the proposition that where concurrent findings of Courts below on question of fact were cogent and convincing and the parties in neither of such appeals were able to show that such findings suffered from any infirmity. Appeals against findings of fact were held to be not competent. Such findings could only be interfered with, if there was any misreading of evidence by Courts below or Courts had arrived at findings ignoring any material piece of evidence on record."
(Home Comforts v. Rashid Baig 1992 SCM R 1290, Asmatullah Khan v. Jhangi Khan 1995 SCM R 207, Yaqub Masih Jacob v. Louisa De Souza 1992 SCM R 1799).
5. The conclusion as arrived at by the learned trial Court, upheld by the learned Appellate Court and affirmed by the learned High Court being well based does not warrant any interference. The petition being merit less is dismissed and leave refused.