BARKAT ALI Versus MUHAMMAD NAWAZ

JAVED IQBAL, J.‑‑ ‑This civil appeal has been filed on behalf of Barkat Ali (Appellant) under Article 185(2) of tire Constitution of Islamic Republic of Pakistan assailing the judgment impugned whereby the civil revision preferred on behalf of respondent has been accepted by setting aside the judgment, dated 18‑12‑2002 passed by the learned Additional District Judge, Gujrat and the judgment; decree, dated 16‑7‑1997 passed by learned Civil Judge, Gujrat, has been kept intact.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "Muhammad Nawaz petitioner filed a suit for specific performance of agreement, dated 17‑3‑1988. Contesting written statement was submitted by the respondent Barkat Ali (defendant). Divergence or pleadings led to framing of issues. Petitioner produced P.W.1, P.W.2, P.W.3, P.W.4 as witnesses and himself appeared as P.W.5 and also produced documentary evidence before learned trial Court. The learned Civil Judge thereupon granted repeated opportunities to the respondent/defendant for producing evidence. On each date respondent sought adjournment Learned trial Court, thereupon closed respondent's right to produce evidence, through order, dated 8‑7‑1997 in exercise of powers under Rule 3 of Order XVII, C.P.C. Learned Civil Judge then adjourned the case to 12‑7‑1997 and from 12‑7‑1997 to 16‑7‑1997 when petitioner's shit was decreed by learned Civil Judge. Respondent filed an appeal. Learned Addl. District Judge, Gujrat accepting the appear, reverse the above said judgment and decree and remanded the case to the learned Civil Judge for recording respondent's evidence and re‑decision of tire case." Being aggrieved a revision petition was preferred by the respondent which has been accepted, hence this appeal.

3. Mr. M. Ibrahim Satti, learned Advocate Supreme Court entered appearance on behalf of appellant and contended strenuously that the judgment passed by the learned Appellate Court could not have been reversed in exercise of revisional jurisdiction as conferred upon the learned High Court under section 115, C.P.C. It is next contended that no illegality whatsoever was committed by the learned Appellate Court by remanding the case as it is always considered desirable to dilate upon and decide such matters on merits instead of sneer technicalities. It is also contended that no prejudice whatsoever has been caused to the respondent and it would be in the interest of justice to get the controversy resolved on the basis of evidence for which fair opportunity was never afforded to the appellant whose grievance has been redressed by the learned Appellate Court by remanding the case. It is also pointed out that the affidavit filed by Ch. Sikandar Hayat, Advocate, has rightly been taken into consideration. It is argued that the respondent has succeeded in obtaining the judgment with the connivance of Reader of the learned trial Court and such practice being highly objectionable has rightly been checked by the learned Appellate Court by pointing out pivotal role played by the Reader of the Court in favour of respondent.

4. We have carefully examined the contentions as agitated on behalf of appellant in the light of record of the case. We have minutely perused the judgment/decree passed by the learned Additional District Judge, Gujrat on 18‑12‑2002 as well as the judgment `impugned. The main thrust of the argument seems to be that the judgment of the learned Appellate Court should have not been reversed in exercise of revisional jurisdiction as conferred upon by the learned High Court under section 115, C.P.C. and the affidavit furnished by Ch. Sikandar Hayat, Advocate, has rightly been considered by the learned Appellate Court. We have adverted to the prime contention of Mr. M. Ibrahim Satti that the learned High Court should have not reversed the judgment of the learned Appellate Court in exercise of revisional jurisdiction which appears to be fallacious for the simple reason that in exercise of revisional jurisdiction, the High Court is competent to reverse the findings of Appellate Court when it is based on insufficient evidence, misreading of evidence, non‑consideration of material evidence, erroneous assumptions of facts and consideration of inadmissible evidence. The findings of the learned Appellate Court cannot be treated as a sacrosanct and has rightly been reversed by means of judgment impugned which is well‑reasoned.

5. We have also examined the affidavit furnished by Ch. Sikandar Hayat, Advocate, which has been given undue importance by the learned Appellate Court because Ch. Sikandar Hayat, Advocate, himself had admitted his appearance before the Court on 19‑2‑1997 when the matter was adjourned to 30‑3‑1997. Besides that the affidavit has been relied upon heavily in oblivion of the provisions as contained in Order XIX, C.P.C. The deponent Ch. Sikandar Hayat, Advocate, was never produced before the Court and due to his non‑production, respondent could not avail the opportunity of cross‑examination and thus his affidavit should have not been considered by the learned Appellate Court as evidence. In this regard, we are fortified by the dictum laid down in case titled The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585), Atta Ullah Malik v. Custodian, Evacuee Property (PLD 1964 SC 236). We are of the view that such affidavit should have not been filed by the, learned Advocates in relation to facts of the case in which he engaged which is not in consonance with the principle of ethics which are binding upon the learned Advocates being officers of the Court. If any authority is needed on this point reference can be made to case titled Sutharsana v. Samarapuri (AIR 1928 Madras 690).

6. It transpired from scrutiny of record that in spite of various opportunities the appellant failed to adduce evidence to substantiate his claim and there was no other option available for the learned trial Court but to exercise its powers as conferred upon it under Order XVII, Rule 3, C.P.C. by means of order, dated 8‑7‑1998. All the contentions agitated and mentioned herein above were dilated upon and decided in a comprehensive manner vide judgment impugned, operative portion whereof is reproduced hereinbelow for ready reference:‑‑

"27. For the reasons above discussed I am of the considered opinion that affidavit of the deponent Advocate was inadmissible and could not have been ipso facto relied upon by the learned Addl. District Judge to upset the conclusive proceedings of case events recorded by the learned Civil Judge in the suit per orders above referred.

28. Furthermore, the respondent had failed to produce his remaining evidence in the suit despite numerous adjournment allowed on his requests. The learned trial Judge validly exercised his discretion under Rule 3 of Order VXII, C.P.C. to close respondent's right to produce further evidence. Petitioner had also proved his case through adequate and credible evidence which was duly and properly evaluated and appreciated by the learned Civil Judge to pass a decree in favour of the petitioner.

29. This civil revision is therefore, accepted. The impugned judgment, dated 18‑12‑2002 of learned Addl. District Judge Gujrat is set aside judgment and decree, dated 16‑7‑1997 passed by learned Civil Judge Gujrat is maintained and restored. Respondent to pay costs throughout."

The conclusion as arrived at by the learned High Court being well‑based does not admit interference. No illegality, infirmity or irregularity whatsoever has been committed justifying interference by this Court. The appeal being meritless is dismissed.

S.A.K./B‑6/S Appeal dismissed.