GHULAM RASOOL Versus NIAZ AHMAD
ORDER
Instant civil revision is directed against the judgment and decree, dated 19‑9‑2000 passed by Additional District Judge, Sadiqabad, whereby he has confirmed the judgment and decree, dated 30‑9‑1997 passed by the Civil Judge, Sadiqabad.
2. Briefly stated the facts of the case are that plaintiff Niaz Ahmad/respondent No.1 filed a suit for specific performance in respect of land described fully in the headnote of the plaint. Initially, the suit was filed against Mushtaq Ahmad/respondent No.2. During the pendency of the suit, Ghulam Rasool/ petitioner moved an application under Order 1, Rule 10, C.P.C., for impleading as party, as he also claimed to have entered into an agreement with the vendor on 11‑3‑1989. Accordingly. Ghulam Rasool, was also impleaded as defendant No.2 in the said suit. Thereafter Ghulam Rasool, defendant/ petitioner, submitted his written statement on 14‑5‑1991. From the divergent pleadings of the parties, the trial Court framed the following issues on 3‑3‑1992:‑‑
(1) Whether the suit is defective due to misjoinder of causes of action?
(2) Whether the suit is improperly valued for the purpose of court‑fee and jurisdiction?
(3) Whether defendant Mushtaq Ahmad executed an agreement for sale dated 21‑10‑1989 in respect of suit property for agreed sale price of Rs.65,000?
(4) Whether the sum of Rs.5,000 was paid as earnest money and possession of the suit property was delivered to the plaintiff?
(5) Whether plaintiff is entitled to the decree of specific performance after payment of remaining sale price?
(6) Whether subsequent sale to defendant No.2 Ghulam Rasool was forged, fraudulent, and ineffective upon the right of plaintiff?
(7) Whether defendants are entitled to special cost in case suit is dismissed?
(8) Relief.
3. In support of his stand, the plaintiff/ respondent No.1 examined Chaudhry Muhammad Sharif P. W .1, Muhammad Akram P.W.2, Allah Rakha Shah P.W.3, Chaudhry Ghulam Murtaza Wahla P.W.4 and appeared himself as P.W.5. During his statement, documents Exh.P.I and P.2 were also brought on record. The evidence of the plaintiff/ respondent No.1 concluded on 31‑5‑1994. Thereafter, the evidence of the defendant/petitioner was to be recorded which was closed under Order XVIII, Rule 3, C.P.C., on 2‑9‑1997 and consequently, the suit was decreed in favour of Niaz Ahmed vide judgment and decree dated 30‑9‑1997. The appeal against the said judgment and decree was filed by the present petitioner as well as respondent No.2 which was accepted vide judgment and decree dated 3‑2‑1999 and the matter was remanded to the trial Court for framing issues in according with law and then to decide the same. Niaz Ahmad/respondent No. 12 felt aggrieved of the said judgment and decree dated 3‑2‑1999 and filed a civil revision which was heard and disposed of by this Court and was consequently accepted vide judgment dated 18‑10‑1999, whereby order, dated 3‑2‑1999 was set aside and matter was remanded to the Appellate Court for deciding the appeal on the basis of evidence available on record. Thereafter, the learned Additional District Judge, Sadiqabad, has again dismissed the appeal vide judgment, dated 19‑9‑2000. The petitioner Ghulam Rasool has felt aggrieved of the said judgment and decree and has filed the instant civil revision.
4. Preliminary arguments have been heard and record perused.
5. The main contention of the learned counsel for the petitioner is that trial Court has not framed the issues arising out of the pleadings of the parties. His contention is that he had entered into an agreement with Mushtaq Ahmed/respondent No.2 but no issue on that score had been framed by the trial Court. He further argued that although no evidence on behalf of the petitioner had been brought on record, yet the judgments returned by the Courts below have not been returned on the basis of evidence which has come on record. He further argued that issue No.6 does not arise out of the pleadings of the parties and even then the trial Court has decreed the suit of plaintiff/respondent No.1 against the petitioner as well as respondent No.2. He, thus, submits that on this short ground, the revision be admitted for regular hearing. In support of his contention regarding framing of issues, he has relied upon Roazi Khan and others v. Nasir and others (1997 SCMR 1849), Mansab Ali v. Hafizan and 5 others (PLD 1993 Lahore 1) and Fazal Mahmood and others v. Tajar Khan (1992 MLD 1439). He further submitted that appeal was accepted and matter was remanded on the ground that no issue had been framed in respect of some compromise which was alleged by him and as such, the said order was set aside by this Court while disposing of revision petition vide order, dated 18‑10‑1999. He, thus, submits that even if no issue in respect of compromise has been framed, the Appellate Court was still bound to dispose of the issues framed on record.
6. According to the contention of the petitioner, it is evident that he had alleged that he entered into an agreement with Musthaq Ahmad on 11‑3‑1989, whereas the stand of Niaz Ahmad/respondent No.1 had been that he had entered into an agreement with said Mushtaq Ahmad on 21‑10‑1989. There is no doubt that no issue in respect of agreement dated 11‑3‑1989 had been framed in the instant case. However, it is clear that issues were framed by the trial Court on 3‑3‑1992 and that too in the presence of the parties and their learned counsel but no objection was raised by the learned counsel for the petitioner at that time. The matter remained pending from 3‑3‑1992 to 2‑9‑1997. During this period of more than five years, the defendant/petitioner also did not care and bother if appropriate issues out of the pleadings had been framed or not. He also did not agitate this point when an appeal against the judgment and decree, dated 2‑9‑1997 was filed. On the other hand, he agitated the factum about talks of compromise and on this score the Appellate Court remanded the matter vide judgment dated 3‑2‑1999 and trial Court was directed to frame issues keeping in view the factum of compromise. However, this reasoning of the Appellate Court did not find favour with this Court and consequently order, dated 3‑2‑1999 was set aside vide order, dated 18‑10‑1999.
7. Be that as it may, the fact remains that defendant/petitioner has failed to produce any evidence whatsoever in support of his contentions contained in the written statement dated 14‑5‑1991 and as such his evidence was closed by the Court on 2‑9‑1997. The trial Court, accordingly, has to decide the matter on the basis of evidence which has been brought on record on behalf of Niaz Ahmad/respondent No. 1. In the light of evidence, which has only been brought on record through Niaz Ahmad, the trial Court was not left with any alternative but to pass the impugned judgment and decree which has been confirmed by the Appellate Court.
8. The jurisdiction of this Court for invoking the provisions of section 115, C.P.C., has elaborately been dealt with in case of Haji Muhammad Din v. Muhammad Abdullah (PLD 1994 SC 291). Relevant observations are reproduced below:‑‑‑
"It is well‑settled law that a concurrent finding by two Courts below car‑not be disturbed by the High Court in Second Civil Appeal muchless in exercise of the revisional jurisdiction under section 115, C.P.C., unless the Courts below while recording findings of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C., is still narrow. The High Court in exercise of its jurisdiction under section 115. C.P.C., can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case (see Umar Dad Khan v. Tilla Muhammad Khan (PLD 1970 SC 288), Muhammad Bakhsh v. Muhammad Ali (1984 SCMR 504); Muhammad Zaman v. Zafar Ali Khan (PLD 1986 SC 89) and Abdul Hameed v. Ghulam Muhammad (1987 SCMR 1005). Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Court the fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived at by the two Courts below, could never be a ground justifying interference with a finding of fact muchless a concurrent finding recorded by the two Courts below on the basis of evidence produced before them in exercise of its revisional jurisdiction under section 115, C.P.C."
Similar view has been taken by this Court in case of Sh. Muhammad Bashir Ali v. Ghulam Mohi‑ud‑Din (1996 SCMR 813). Relevant observations are as under:
"As pointed out by this Court in Muhammad Umar Beg's and Kanwal Nain's cases supra, revisional powers under section 115, C.P.C., are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. In Kanwal Nain's case it was, however, pointed out that ordinarily erroneous decisions of fact are not revisable, except in cases where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therein.
The above enunciation of the scope of the revisional power vesting in the High Court clearly shows that no interference was called for in this case and upsetting the conclusions of the Courts below virtually on the question of fact by way of re -examination of evidence at revisional stage it has overstepped the limit or its jurisdiction."
9. As a sequel to above discussion, I feel inclined to hold that judgments and decrees rendered by the Courts below do not suffer from any irregularity what to speak of any material irregularity or jurisdictional defect. Consequently, the revision petition fails and is hereby dismissed in limine.
H.B.T./G‑122/L Revision dismissed.