Ashfaq Ali vs Noor Muhammad And Other
The petitioner sought leave to appeal against a Lahore High Court judgment that had set aside concurrent decrees for possession through pre-emption granted by the Trial Court and the first Appellate Court. The High Court had interfered in revision, primarily because the Trial Court had disallowed the respondents' application to adduce secondary evidence regarding the performance of 'Talabs'. The Supreme Court observed that the order rejecting the secondary evidence application was passed on 1.4.1996 and was never challenged in the first Appellate Court. Consequently, the Supreme Court held that the High Court erred in exercising its revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. The Court reiterated that revisional jurisdiction cannot be invoked to interfere with concurrent findings of fact unless they are perverse or based on a misreading of evidence. Since the respondents failed to challenge the interlocutory order in the first appeal, the High Court's interference was unjustified. The petition was converted into an appeal, the High Court's judgment was set aside, and the trial court's decree was restored.
- Can the High Court exercise revisional jurisdiction to interfere with concurrent findings of fact that are not perverse or based on a misreading of evidence?
- Is it permissible to challenge an interlocutory order in revision if that order was not challenged in the first appeal?
- Does the failure to challenge an order rejecting secondary evidence before the first Appellate Court preclude the High Court from setting aside the decree on that ground in revision?
- Section 115, Code of Civil Procedure 1908
ORDER KARAMAT NAZIR BHANDARI, J.~, Plaintiff- petitioner succeeded in obtaining a decree for possession through pre-emption from the Trial Court as well as from the first Appellate Court.
Respondent's revision, however, was allowed by a learned Judge of the Lahore High Court, on the ground, that the Trial Court was wrong in disallowing the application of respondents for permission to adduce secondary evidence which evidence would have some relevance to issue No. 2 viz. "whether plaintiff made all the Talabs in accordance with law?", the only issue argued before the learned Judge.
2. It is contended by Mr. S. M. Masood, learned ASG that the application to adduce secondary evidence was rejected on 1.4.1996 which order was never challenged either independently or in appeal against the decree, in the first Appellate Court and in the circumstances it cannot be said that the first Appellate Court exercised its jurisdiction illegally or with material irregularity.
According to Mr. Masood in the absence of such a finding, the revisional jurisdiction cannot be exercised. *
3. In reply Syed Muhammad Kaleem Ahmed Khurshid, learned ASC appearing for respondents has not been able to show that the order dated 1.4.1996 passed by the Trial Court was challenged before the Appellate Court.
4. 1n the circumstances, therefore, it does seem that the High Court has wrongly, exercised its jurisdiction under section 115, Civil Procedure Code, 1908. The Court has been lying down time and again that in exercise of revisional jurisdiction the concurrent findings of the Trial Court and the Appellate Court are not liable to be interfered with unless the same can be shown to have been arrived at in disregard or mis-reading of material evidence or are otherwise perverse, In the present case the Trial Court as well as the Appellate Court had answered the issue as regards Talabs in favour of the plaintiff-petitioner. The impugned order does not show that this finding suffered from such an illegality or infirmity which invited the exercise of Jurisdiction by the High Court. Additionally as the Order dated 1.4.1996 of the Trial Court could have been but had not been challenged in appeal before the first Appellate Court, the revisional jurisdiction could not have been exercised, in the facts and circumstances of this case, on this ground.
5. For what has been stated above, we convert this petition into appeal and allow the same. The impugned judgment of the High Court is set aside and that of the first Appellate Court affirming judgment and decree of the Trial Court is restored. No order as to cost.