GHULAM RASOOL vs PIR BAKHSH And Other
This matter arises from a petition for leave to appeal filed by a vendee against the Lahore High Court judgment dismissing a civil first appeal from a remand order. The core legal question concerns the approach of the High Court in a first appeal from a remand order where lower courts rendered judgments of variance regarding the true nature of a transaction alleged to be a gift versus a sale in a pre-emption suit. The Supreme Court held that while the High Court should have examined the disputed facts following the rule applicable to judgments of variance, a deeper scrutiny of the record by the Supreme Court revealed that the first appellate judgment was well-founded on evidence and more rational than the trial court's decision. The Court laid down that in cases of variance between lower courts, the High Court must scrutinize the facts, but where the appellate forum's view is sound and rational, interference is unwarranted. Leave to appeal was consequently refused.
- Whether the High Court is required to examine disputed facts in a first appeal from a remand order when lower courts have rendered judgments of variance?
- Can the Supreme Court undertake a deeper scrutiny of evidence when lower courts give conflicting findings regarding the nature of a transaction?
- Does a transaction structured as a gift deserve protection against a claim of pre-emption when found to be a sale?
- Section 100, Code of Civil Procedure 1908
ORDER
MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a vendee from judgment, dated 29-1-1985 of Lahore High Court; whereby a Civil First Appeal from a remand order filed by the petitioner, was dismissed. It had arisen out of the remand order passed by the First Appellate Court after a finding in a pre-emption matter: that a transaction held by the trial Court to be gift made to the petitioner was in fact sale so as to make it possible to protect it against a claim of pre-emption.
2. Learned counsel has contended that it was first appeal from a remand order, therefore, it should have been treated as first appeal on facts and principles of section 100, C.P.C., should not have been applied by the High Court making the facts immune from scrutiny.
3. We agree that it was first appeal but not in the first Court of appeal in ordinary sense. After the trial Court decision the first appellate forum had examined the facts. That Court was examining it for the second time. If it would not have been for the decision of the remaining issues, it would not have been a case of remand. Be that as it may there is force in the argument of the learned counsel that the High Court should have itself given a finding on the disputed facts. It is so because in our view when there are two judgments of variance by the lower Courts, the High Court is required to follow the rule laid down in the case of Madan Gopal v. Maran Beyari PLD 1969 SC 617.
4. We have, however, in order to do justice in the same following the said rule compare both judgments on the controversy relating to the nature of the disputed transaction and have also examined the material in that behalf. We also asked various questions from the learned counsel for the petitioner regarding the nature and continuity of rela--tionship between the so-called donor and the donee. This exercise, in deeper scrutiny, has convinced us that the first appellate judgment, as compared to that of the trial Court, is based on evidence, is more in accord with natural human conduct and is far more rational. The same would have been the result if the High Court would have done the exercise. We accordingly while upholding the impugned judgments do not consider it a fit case for grant of leave to appeal. The same is refused.