Rana GHULAM RASUL KHAN vs WASIM GUL, Proprietor Messrs, Moon
The petitioner sought leave to appeal against the judgment of the Lahore High Court passed in a regular second appeal, which had disturbed concurrent findings of fact recorded by two lower courts and dismissed the petitioner's suit for rendition of accounts. The core legal question was whether the High Court was legally justified in interfering with concurrent findings of fact through the reappraisal of evidence in a second appeal. The Supreme Court granted leave to appeal, holding tentatively that the scope of interference in second appeal is limited to questions of law or jurisdictional errors, and that the High Court erred by reappraising the evidence to take a contrary view, particularly where the respondent failed to step into the witness-box to rebut allegations. The key principle laid down is that the High Court should not ordinarily reappraise evidence to disturb concurrent findings of fact in second appeal unless a clear error of law or jurisdiction is established.
- Whether the High Court is legally entitled and justified in disturbing concurrent findings of fact by reappraising the evidence in a second appeal?
- Does the failure of a defendant to step into the witness-box to rebut allegations strongly militate against the raised defence?
ORDER
' RANA BHAGWANDAS, J.--- Petitioner seeks leave to appeal against Lahore High Court judgment, dated 26-2-2004 passed in Regular Second Appeal No,54 of 2004, disturbing concurrent findings of fact recorded by two Courts below in a suit for rendition of accounts, filed by the petitioner.
2. Precisely, case of the petitioner appears, to be that there was a partners,hip agreement between him and respondent No,1 valid up to 20-12-1998 whereunder they used to have contracts for supply of banners, to the Health Department and maintained a joint account. It was alleged that respondent No,1, after receiving payments from the Health Department instead of depositing the amounts in the joint account of the partners,hip firm, credited the same into his personal account.
3. Suit was contested and issues were struck. Both the parties adduced evidence. Upon conclusion of the trial learned Civil Judge, First Class, Lahore decreed the suit and passed a preliminary decree. Appeal preferred against the judgment and decree was dismissed and the decree affirmed. In regular second appeal, however, a learned Judge in Chambers, of the High Court, upon reappraisal of the evidence, disturbed the findings of fact and dismissed the suit.
4. We have heard Chaudhry Riyasat Ali learned Advocate Supreme Court and gone through the record as well as the impugned judgment of the High Court. Tentatively observing, scope of interference in second appeal is always limited and the High Court could only interfere with the findings of fact on the question of law or error of jurisdiction whereas, in the instant case, it appears, that the High Court, upon reappraisal of evidence, has taken a contrary view, which, according to the learned counsel suffers, from misreading of evidence and misconstruction of the principles of law. Another ground urged in support of this petition is that respondent Waseem Gul did not step into witness-box to rebut various allegations of fact levelled by the petitioner and fully supported by his witnesses, which strongly militates against the defence raised by the respondents.
5. Leave to appeal accordingly granted, inter alia, to consider whether the High Court was legally entitled and justified in disturbing the findings of fact and committed an error of law by reappraising the evidence and taking a contrary view? Order accordingly.
6. Pending the decision of the appeal, operation of the judgment and decree of the High Court shall remain suspended.