NAIMAT KHAN Versus HAMZULLAH KHAN

IJAZ-UL-HASSAN KHAN, J.--- Shortly narrated the facts relevant for disposal of instant civil revision are, that Naimat Khan and others, plaintiffs instituted suit against Hamzullah Khan and others, defendants, for a declaration to the effect that plaintiffs are owners in possession of suit-land by virtue of oral purchase by the forefathers of the plaintiffs from the forefathers of the defendants and the entries in the Revenue Record are void, illegal, ineffective on the rights of the plaintiffs and liable to rectification. The plaintiffs also prayed for grant of permanent injunction, restraining the defendants to alienate the suit-land in any manner. In the alternative, possession of suit-land was also sought.

2. The suit was resisted on all grounds, legal as well as factual. In view of the pleadings of the parties, following issues were framed for trial:--

3. After recording such evidence as the parties wished to adduce, learned Civil Judge/Illaga Qazi at Daggar' Buner, seized of the matter, dismissed suit by judgment and decree, dated 9-5-2000 holding that plaintiffs have failed to prove the factum of sale. An appeal was preferred there against before learned District Judge/Zilla Qazi, Daggar Buner, which was also dismissed by judgment dated 5-1-2002. Hence instant civil revision.

4. I have heard S. Iftikhar Mashwani, Advocate, for the petitioners and Mr. Shah Nawaz Khan, Advocate for the respondents, in the light of the material on record.

5. Learned counsel for the petitioners, contended that the impugned judgments and decrees of the Courts below are the result of misreading and non-reading of evidence And the Appellate Court had failed to record judgment issue-wise and separate in terms of the requirements of Order XX, rule 5, C.P.C. In the last limb of arguments, learned counsel prayed for remand of the case in terms of Order XLI, rule 25, C.P.C.

6. In order to appreciate the contention of the learned counsel for the petitioners, I consider it appropriate to reproduce below the provisions of Order XX, rule 5, C.P.C. which reads:--

"Court to state its decision on each issue.---In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons, therefor upon each separate issue, unless the finding upon anyone or more of the issues is sufficient for the decision of the suit. "

The above provision is evidently applicable to the original Court which hears a civil suit. As regards Appellate Court, the requirement of recording finding issue-wise is not mandatory. It is sufficient for the Appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An Appellate Court recording its findings all the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error. Umar Din v. Ghazanfar Ali and others 1991 SCMR 1816.

7. The appellate and the revisional Court is always empowered to remand the case in terms of Order XLI, rule 25, C.P.C., but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of jurisdiction. Needless to emphasize that powers under Order XLI, rule 27, C.P.C. are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence, and this provision cannot be used for the benefit of a party which has not been vigilant enough to see that no weaknesses are left in its case. The power to order remand is no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental. A party cannot be allowed to adduce evidence to do away with the weakness that exists in its case. The august Supreme Court of Pakistan in case titled Ashiq Ali v. Zameer Fatma PLD 2004 SC 10, has observed as under:--

"It is well settled by now that where the evidence on record is sufficient for the Court concerned to decide the matter itself, remand should not be ordered and moreso, a Court will not remand a case where the defect is due to the negligence and the default of the party desiring remand."

8. I have examined both the judgments passed by the Courts below and find that the same are unexceptionable, legal, apt to the facts and circumstances of the case and do not call for any interference by this Court. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The judgments impugned in all respect, are not arbitrary or fanciful and fulfil all the requirements of doing justice on the basis of canons known in this behalf. The learned counsel has not been able to point out any misreading or non-reading of evidence on the part of the forums below. The claim of the petitioners is based on oral purchase. The onus to prove the factum of purchase was heavily placed on the petitioners but they have miserably failed to discharge the same by producing cogent and reliable evidence. The evidence produced by the petitioners is discrepant and not worthy of credence. The mere assertion of the plaintiffs regarding oral sale, without a positive attempt on their part to substantiate the same, is of no consequence.

In the result and for the foregoing reasons, finding no merit in this civil revision, the same is hereby dismissed with no order as to costs.

H.B.T./544/P Revision dismissed.