ABDUL KARIM vs Haji NOOR BADSHAH

' KHILJI ARIF HUSSAIN, J.---The petitioner impugns the judgment of the Peshawar High Court, D.I.

Khan Bench whereby Civil Revision No. 45 of 2007 filed by him was dismissed by maintaining the judgments and decrees of the Senior Civil Judge, Tank and Additional District Judge, Tank.

2. Brief facts to decide the petition are that respondent filed a suit for recovery of Rs.10,00,000 along with interest at bank rate against the petitioner. The petitioner also filed a suit against the respondent to the effect that a receipt dated 5-5-1999 is fictitious, bogus, void and inoperative and liable to be cancelled. Both the suits were consolidated and consolidated issues were framed by the trial Court. After framing the issues and recording the evidence, trial Court on the basis evidence produced by the parties vide its consolidated judgment dated 31-7-2003, decreed the suit filed by the respondent while dismissing the suit filed by the petitioner.

3. The petitioner dissatisfied by the said judgment and decree, filed appeal before the Additional District Judge, Tank which was dismissed vide his judgment dated 22-12-2006. The petitioner, feeling aggrieved, filed Civil Revision before the Peshawar High Court, D.I. Khan Bench, which also met the same fate.

4. Syed Zafar Ali Shah, Senior Advocate Supreme. Court for the petitioner questioned the validity of the impugned judgment on the ground that the issue about the authenticity of receipt was not framed by the trial Court and further that the judgments and decrees passed by the Courts below are based on non-reading and misreading of the evidence.

5. We have taken into consideration arguments advanced by the learned counsel for the petitioner, perused the available record and have also examined the concurrent findings recorded by the Courts below.

6. From perusal of the record, it appears that after framing the issues, the petitioner has not filed any application to amend the issues and led his evidence. From memo of appeal as well as revision, it also appears that the petitioner has not questioned the judgment and decree passed by the trial Court in appeal and revision on the ground that the issue regarding authenticity of the receipt has not been framed. The petitioner cannot be allowed, for the first time, to raise the question at this stage. The petitioner was well aware of the case filed against him and merely because specific issue has not been framed about the validity/authenticity of the receipt no prejudice has been caused to him. The parties have led their evidence about the validity of receipt and the Courts below after taking into consideration the evidence on record about the authenticity of the receipt, decreed the suit.

7. In the absence of miscarriage of justice due to non-framing of issue on a particular controversy in the matter, like where Court did not allow the parties to lead their evidence in support of their contentions for want of issue, if on a question of fact a specific issue required to be framed in the light of the pleadings of the parties is not framed but parties have led evidence in support of their respective stances, the decision on such question can be rendered in the light of evidence available on record without framing the issue.

8. In the case of Fazal Muhammad Bhatti v. Saeeda Akhtar, (1993 SCMR 4), it was held:-- "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift.

The non framing of a specific issue in such circumstances is inconsequential."

(9)Having considered the matter from all angels in the light of material on file, we find no substance in the submissions of learned counsel for the petitioners that the judgments and decrees of the Courts below are based on misreading and non-reading of evidence as the learned counsel has not been able to point out any misreading and non-reading of evidence, which would justify interference. The learned High Court has assigned cogent 'reasons in the impugned judgment for dismissing the civil revision filed by the petitioner and upholding the judgments and decrees of the forums below.

In view of the above, we do not find any merit in this petition which is accordingly dismissed and .