Mst. BAKHSHI vs FAZAL MUHAMMAD and another
This petition for leave to appeal arose from a pre-emption suit where the vendor challenged a decree granted in favour of the respondent/vendee. The petitioner argued that no sale had occurred, a plea rejected by the trial court and upheld by the first appellate court. In the Regular Second Appeal, the Lahore High Court affirmed the lower courts' concurrent findings of fact while also admitting additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure 1908. The petitioner contended that the High Court erred in admitting such additional evidence during a second appeal and that the High Court's own finding of misreading of evidence by lower courts should have invalidated the concurrent findings. The Supreme Court of Pakistan held that, irrespective of the additional evidence admitted, there existed sufficient independent material on record to sustain the concurrent findings of fact made by the lower courts. Consequently, the Court found no justification to grant leave to appeal, dismissing the petition and declining to address the procedural question regarding the admission of additional evidence in second appeals, leaving it for a future appropriate case.
- Can the Supreme Court dismiss a petition for leave to appeal where sufficient material exists to support concurrent findings of fact, despite procedural objections regarding the admission of additional evidence?
- Does the existence of sufficient material on record justify upholding concurrent findings of fact even if there are allegations of misreading evidence by lower courts?
- Order XLI Rule 27, Code of Civil Procedure 1908
ORDER
' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a vendor in a case of pre- emption against judgment, dated 14-1-1981 of the Lahore High Court; whereby the petitioner's Regular Second Appeal, was dismissed.
2. In a pre-emption suit, the petitioner/vendor and the respondent/vendee took up the position that no sale had taken place, therefore, the pre-emption decree could not be passed in favour of the plaintiff/respondent. The plea was rejected and the pre-emption suit was decreed. The judgment of the trial Court was upheld in Ist Appeal. In Second Appeal filed by the petitioner, the two judgments of the Lower Courts were upheld. The learned Single Judge in the High Court, however, also admitted additional evidence under Order XLI, Rule 27, C.P.C.
3. The learned counsel for the petitioner, while seeking leave to appeal on behalf of the vendor, has contended that the learned Single Judge could not have admitted additional evidence under Order XLI, Rule 27 when hearing and disposing of a Regular Second Civil Appeal; and further, that even on the basis of the additional evidence the judgments of the learned Lower Courts (notwithstanding the fact that they contained concurrent findings of fact against the petitioner), could not have been upheld by the High Court; because, as further contended by the learned counsel, the High Court itself came to the conclusion that there was misreading of the evidence by the learned lower Courts.
4. We, after hearing the learned counsel and perusal of the impugned judgment, are of the view that in addition to the material brought on record in the evidence admitted in the High Court, there was enough material for High Court to affirm and uphold the concurrent findings of fact by the two Courts below. That material was noticed by the High Court against the petitioner in affirming the findings by the learned Courts below.
5. In that view of the matter, no justification has been made out for grant of leave to appeal in this case. The question of law raised by the learned counsel, if not already resolved, can be examined in some other proper case. This petition is accordingly, dismissed.