Mst. KAPOORI and 4 others vs MAN KHAN and 6 others
This petition for special leave to appeal arises out of an order of the Lahore High Court dismissing the petitioners' second appeal in limine, which had challenged concurrent findings of fact regarding the execution of a general power of attorney. The core legal question was whether concurrent findings of fact by the lower courts could be interfered with in second appeal on the premise that the High Court's observations implied improper appraisal of evidence. The Supreme Court held that findings of fact, even if they could theoretically lead to a different conclusion upon re-appraisal, cannot be interfered with in second appeal when based on a due appraisal of evidence by the lower forums. The key principle laid down is that a mere observation by an appellate court that a different view of evidence might be possible does not invalidate concurrent factual findings or warrant interference in second appeal unless the findings are shown to be suffering from a legal defect or misreading.
- Whether concurrent findings of fact recorded by the lower courts can be interfered with in a second appeal?
- Does an observation by a High Court that a different conclusion might be possible on re-appraising evidence warrant interference with concurrent findings of fact?
- Can a new submission not raised in the lower courts be permitted to be argued for the first time in a petition for special leave to appeal?
ORDER
1. ' NASIM HASAN SHAH, J.---This petition for special leave to appeal is directed against the order dated 29-11-1974 of the Lahore High Court, Lahore dismissing the second appeal (R.S.A. No,371 of 1974) of the petitioners, in limine.
2. ' One Man Khan, son-in-law of Chutan Khan---the predecessor-in-interest of the petitioners--had sold the land of his father-in-law on the basis of a general power of attorney executed in his favour. Chutan Khan had challenged the sale by bringing a suit wherein it was pleaded that the said Power of Attorney was not executed by him. The suite was dismissed by the Civil Judge by his order dated 6-12-1969. The appeal preferred against the said order was also dismissed by the Additional District Judge (on 18-6-74) and the second appeal also failed.
3. ' The main issue between the parties was whether the plaintiff (predecessor-in-interest of the present petitioner) had executed a general power of attorney in question or not? The Courts below after examining the relevant evidence came to the conclusion that Chutan had indeed executed the general power of attorney and that the same was a genuine document.
4. ' The learned Judge in the High Court in his order observed that the question in dispute was one of fact which could not be interfered with in the second appeal but went on to observe:-- "It is possible that if this Court appraised evidence produced on record then it may reach some different conclusion, but even then interference with the impugned judgment cannot be made. The judgment as passed by both the Courts below may be erroneous, but since it is based upon due appraisal of the evidence, therefore, no interference with it is warranted by law."
5. ' Ch. Muhammad Sadiq, in support of this petition, attempted to contend that these observations indicate that the evidence had not been properly appraised by the Courts below and, therefore, the case requires further examination.
6. We do not share this opinion. The learned Judge in the High Court had clearly held that the issue between the parties was one of fact and had been decided after due appraisal of the evidence and went on to add that it is well-established that even though the finding of the Courts below may be erroneous such finding cannot be interfered with in the second appeal. It is obvious that the learned Judge was merely referring to this established principle and not giving any finding that the case had been wrongly decided and the evidence wrongly read.
7. Ch. Muhammad Sadiq also made some other submissions which had not been raised in the Courts below which cannot be considered.
8. ' There is no force in this petition which is hereby dismissed.
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