ABDULLAH JAN AND Others vs TILA MUHAMMAD AND Other
This matter comes before the Supreme Court of Pakistan upon a review petition seeking the review of an earlier order of the Court which had dismissed a civil petition for special leave to appeal. The underlying dispute pertains to the alienation of agricultural property by a vendor in favour of his son, which was challenged on grounds of unsoundness of mind, undue influence, and lack of consideration. The trial court and the Peshawar High Court both concluded that the vendor was of sound mind, no undue influence was exercised, full consideration was paid, and the subsequent suit was barred by constructive res judicata under the Civil Procedure Code. The core legal questions involved whether the inference drawn regarding undue influence constituted a question of law and whether the bar of res judicata applied. The Supreme Court held that an erroneous finding of fact based on an appraisal of evidence does not constitute an error of law without procedural defect, and concurrent findings of fact cannot be disturbed in review or leave petitions. The petition was accordingly dismissed.
- Does an erroneous finding of fact arrived at after an appraisal of evidence amount to an error of law?
- Can a concurrent finding of fact regarding the soundness of mind of a vendor and the absence of undue influence be interfered with by the Supreme Court?
- Can a new contention not raised at the time of the hearing of the original petition furnish a ground for review?
- Section 11, Civil Procedure Code 1908
- Section 16(2), Contract Act 1872
ORDER
1. ANWARUL HAQ,C. J.-This petition seeks a review of the order of this Court dated the 16th of December, 1972, whereby Civil Petition for Special Leave to Appeal bearing No. 20-P of 1972, was dismissed.
2. The dispute relates to the alienation of certain agricultural property by Haji Mian Muhammad in favour of his son Haji Fazal Illahi. After examin--ing the evidence brought on the record by the parties, the learned Senior Civil Judge, Peshawar, had come to the conclusion that the vendor was of sound disposing mind at the time of making the sale, that he had not been subjected to any undue influence, and that full consideration had been paid. The trial Court also held that in view of explanation IV of section 11 of the Civil Procedure Code the defendants, that is, the present petitioners were debarred from raising these pleas for the reason that they had previously brought a suit in respect of this very property, but had not raised the pleas on which they were resisting the present suit. These findings of the trial Court were upheld by a Division Bench of the Peshawar High Court, and the petitioners were refused leave to appeal by the order under review.
3. It is submitted by Mr. Muhammad Naazar Khan. That this Court was in error in observing that the question regarding the exercise of undue influence was a question of fact, as the real question was as to the inference to be drawn from the evidence, and this was a question of law falling within section 16(2) of the Contract Act ; and that the trial Court as well as the High Court were in error in holding that the defendants were debarred from raising these pleas under section 11(4) of the Civil Procedure Code.
4. There is no merit in these submissions. As observed in Abdul Majid and others v. Khalil Ahmad (PLD 1955 FC 38), an erroneous finding of fact arrived at after on appraisal of evidence does not amount to an error of law unless there is an error in the procedure provided by law, which may possibly have produced an error of defect in the decision of the case on the merits. Now, in the present case, the two Courts below have recorded a concurrent finding of fact on the question of the soundness of the mind of the vendor, and the absent of undue influence over him, and these findings are fully sustainable on the record. It was rightly observed in the order under review that this was pre-eminently a question of fact and could not justify interference by this. Court.
5. The second contention was not raised at the time of the bearing of the petition, and cannot, therefore, furnish a ground for review.
6. As a result, the petition fails and is hereby dismissed.
Cited by 1 case
- WAZIR BEGUM Versus MUHAMMAD NAZIR 1999 SCMR 1299