Haji MUHAMMAD ZAMAN vs ZAFAR ALI KHAN AND OTHERS

1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through leave of this Court is directed against judgment, dated 17-6-1981 of the Peshawar High Court ; whereby an appellate judgment passed in favour of the appellant (plaintiff) pre-emptor, was set aside in the revisional jurisdiction of the High Court.

2. ' The appellant's suit for pre-emption was dismissed in default on 10-6-1979 which was fixed for appearance of the defendants for the first time as also for deposit of the zar-i-panjum. He sought restoration of the suit on the plea that although appearance was put in on 10-6-1979, the case was adjourned to 21-7-1979. In support of this plea the appellant produced a parcha peshi issued and signed by the Reader indicating the appearance from the plaintiff side on 10-6-1979 and the adjournment of the suit to 21st of July, 1979. The respondents opposed the restoration of the suit and asserted that the parcha peshi was fictitious and further that the application for restoration of the suit was time-barred. The parties led evidence. On the appellant side Ahmad Khan, Reader of the Court. Appeared as a witness and owned the writing and signatures on the parcha peshi which document indeed supported the appellant's plea with regard to appearance on 10-6-1979 and the adjournment of the case to 21st of July, 1979.

3. ' The learned trial Judge dismissed the application for restoration of the suit. But on appeal the learned District Judge after carefully analysing the contents of the parcha peshi and the deposition of the Reader came to the conclusion that "the Reader is the author of the parcha peshi cannot be disputed and his explanation that it did not pertain to the suit between the parties does not appear to be a satisfactory one. Since the parcha peshi was in possession of the appellant and was produced by him it can be presumed that it was handed over to him by the Reader and the allegation of the respondents that it was a forged one would not, in the circumstances prevail".

4. Thus, the appellant's plea on facts and merits was accepted. But the learned Judge also held that 10-6-1979 was not fixed for hearing, therefore, the suit could not be dismissed. For non-prosecution and no question of limitation arose. Accordingly, as a result of the discussion on bota the questions of merits and law, the appeal of the plaintiff pre-emptor (the present appellant) was allowed; the order of the trial Court was set aside, application for restoration of the suit was accepted and the case was remanded for further proceedings.

5. ' On a revision filed by the respondents (defendants) vendees' side in the High Court, the aforenoted facts and circumstances were noticed. Further-on Ahmad Khan Reader was re- summoned in the High Court and re-examined and re-cross-examined. As a result of the additional evidence recorded in the High Court, toe factual aspect as to whether the appearance was put in from the appellant-side on 10-6-1979, was re-appraised conclusion contrary to the one reached by the learned District Judge, was arrived at with a finding that the parcha peshi issued by the Reader was a forgery. Strictures were passed against the Reader also, presumably with a view to show that he had colluded with the plaintiff. Further, so as to avoid complications, elaborate directions with a specimen of form for parcha peshi were issued for future guidance of the Courts concerned.

6. ' We have been informed by the learned counsel for the respondents that the new instructions are being followed. There is no dispute about this short point now. The Hon'ble Chief Justices of the other High Courts be informed about the procedure introduced by the Peshawar High Court, for its beneficial use by the Courts under their supervision. Office shall act accordingly in this behalf.

7. Leave to appeal was granted, inter alia to examine the question: "whether the High Court could have decided a revision under section 115, C. P. C. So as to reverse the judgment impugned in the revision, on recording/admission of fresh evidence in the High Court, in its re visional jurisdiction" with a view to determine the scope of the revisional jurisdiction.

8. ' Learned counsel for the appellant has while agreeing that some evidence might be admitted at the revisional stage in order to determine the jurisdictional facts, the revision not being in continuation of the suit like an appeal, additional evidence could not be recorded on the merits of the case so as to set aside the appellate and/or the original judgment. He, however, could not exclude exceptional cases, depending upon the facts and circumstances of each case however could not be excluded where, in order to see whether a lower Court had acted with material irregularity by virtue of which the case could fall under sub-clause (c) of section 115(1), C. P. C., a clarificatory statement might be recorded by the High Court or evidence 'material might be admitted in any other form. Learned counsel for the respondents, however, contended that additional evidence could be recorded by virtue of Order XVIII, rule 17 and if it is treated that the said provision is relatable to a suit and/or at the most an appeal, a revisional Court could record additional evidence under section 151, C. P. C. As a part of its inherent jurisdiction.

9. ' It is not necessary for us to go any further than what has been stated above because of a recent pronouncement of this Court in Kanwal Nain and others v. Fateh Khan and others (1). It was observed as follows : "Clearly the decision of the learned Single Judge, impugned in this appeal, turns on the determination of a question of fact. As pointed out by this Court in Muhammad Umar Beg v. Sultan Mahmood Khan PLD 1970 SC 139 revisional powers under section 115, Civil Procedure Code are primarily intended for correcting errors made by subordinate Courts in the exercise of their jurisdiction. Also ordinarily erroneous decisions of fact

(1) PLD 1983 SC 53 ' are not revisable, except in cases where the decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom."

10. ' Reliance was also placed on a Privy Council case of Venkatagiri v. H. R. E. Board, Madras (1), which was also followed in Umar Dad Khan v. Tila Muhammad Khan (2).

11. ' We while keeping in view the law declared on the point have made an effort to uphold the impugned judgment of the High Court in this case wherein reversal of findings of fact with regard to the appearance of the appellant on 10-6-1979 and the issuance of the parcha peshi by the Reader was achieved by recording additional evidence of the Reader of the trial Court but with no success. The impugned judgment does not fall under clause (a) of section 115 (1), C. P. C. Because the learned appellate Court in this case did exercise the jurisdiction vested in it by law. The case is not covered by clause (b) either because there is no complaint from either side that any Court had failed to exercise a jurisdiction vested in it. And finally clause (c) is not attracted because no arguments have been addressed at the bar that the appellate Court had acted in exercise of its jurisdiction illegally or with any material irregularity.

12. ' We having carefully scrutinised the appreciation of evidence on record by the learned appellate Court so as to discover whether there was any material irregularity even by way of departure from any principle of appreciation of evidence but none was found. Thus, there was no material irregularity either in so far as the appellate judgment is concerned. There was no further scope except for clauses (a) (b) (c) of. Section 115(1), C. P. C. By virtue of which the High Court could either interfere with the findings of fact or could if at all, record additional evidence at the revisional stage. In the result there is no alternative but to allow the appeal and set aside the impugned revisional judgment and restore the appellate judgment in this case. We order accordingly. But in tit circumstances of the case leave the parties to bear their own costs.

13. ' Before parting with this judgment it needs to be mentioned that arguments were addressed at the bar with regard to the question whether 10-6-1979 was the date fixed for hearing of the suit or not.

14. We feel that the learned counsel did not have enough time to render proper assistance on this point. As the appeal has been allowed on another vital aspect of the case, we do not consider it necessary, in the above explained circumstances, to examine the other question.

(1) PLD 1949 P C 26 (2) PLD 1970 SC 288