Haji MUHAMMAD DIN vs Malik MUHAMMAD ABDULLAH

' SAEEDUZZAMAN SIDDIQUI, J.---The appellant has filed above appeal as of right under Article 185(2)

(d) and (e) of the Constitution of Islamic Republic of Pakistan, against the judgment and decree dated 15-6-1993 passed by a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, in Civil Revision Application No,7 of 1993.

2. The appellant instituted a suit for recovery of Rs,80,340 against the respondent in the Court of Civil Judge, Find Dadan Khan on the allegation that the respondent had taken a sum of Rs,95,340 from the appellant on the pretext that he would sell him shop/land. It was further alleged that the appellant later came to know that respondent neither owned any shop nor any plot and, accordingly, he asked the respondent to return the amount received by him on the pretext of sale of plot/shop. The respondent returned the appellant a sum of Rs,15,000 promising to return the balance Rs,80,340 within a short time. However, the respondent failed to return the balance amount, whereupon a dispute arose between the parties and through a writing dated 23-7-1988, the respondent admitted his liability to pay the amount of Rs,80,340 to the appellant. The suit was resisted by respondent and on the pleadings of the parties, the trial Court framed the following issues:--- "(1) Whether the suit is false, frivolous and has been filed to overburden the defendant with litigation costs, if so, is he entitled to recover special costs under section 35-A, C.P.C. And to what extent?

O.P.D.

(2) Whether no cause of action is available to the plaintiff to file the instant suit against the defendant? O.P.D.

(3) Whether the agreement dated 23-7-1988 is a fictitious, forged and void ab initio document and as such is of no legal effect qua the rights of the defendant? O.P.D.

(4) Whether the plaintiff is entitled to the decree for the recovery of Rs,80,340 from the defendant as prayed for? O.P.P.

(5) Relief."

' After recording evidence of the parties, the trial Court decreed the suit and on Ist appeal, the judgment and decree passed by the trial Court was affirmed. However, on a Civil Revision Application filed by the respondent the learned Judge in Chambers reversed the concurrent finding of fact on issues Nos.2, 3 and 4 and dismissed the suit of the appellant giving rise to the present appeal.

3. We have heard the learned counsel for the parties at length and our 'conclusions are as follows:

4. It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C., unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. Is still narrower.

The High Court in exercise of its jurisdiction under section 115, C.P.C. Can only interfere with the orders of the subordinate Courts on' the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case, (See Umar Dad Khan v. Tilla Muhammad Khan, PLD 1970 SC 288, Muhammad Baldish v. Muhammad All 1984 SCM R 504, Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed v. Ghulam Muhammad 1987 SCM R 1005). Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Courts. The fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived at by the two Courts below, could never be a ground justifying interference with a finding of fact much less a concurrent finding recorded by the two Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C.P.C.

5. We have examined the findings recorded by the trial Court which was affirmed by the Ist appellate Court, on issues Nos.3 and 4 in the suit and we find that these findings are neither perverse nor the result of any misreading of evidence on record nor the trial Court and the Ist appellate Court omitted from consideration any material piece of evidence on record. The oral as well as documentary evidence was fully discussed by the trial Court as well as Ist A appellate Court in their respective judgments and we fail to discover any infirmity in their conclusion which rendered the exercise of jurisdiction by them defective. The two Courts below after discussing the evidence in the case held that the appellant had succeeded in establishing his claim in the suit in respect of Rs,80,340 claimed against the respondent. This concurrent finding of facts was not open to be interfered with by the High Court in exercise of its revisional jurisdiction on the ground that the appellant had failed to produce in evidence his wife in whose presence the amount was allegedly paid to the respondent or that one of the witnesses produced by the appellant before the trial Court in his statement had also stated that the amount claimed by the appellant was due on account of certain business transaction between the parties. The facts taken into consideration by the learned Judge in Chambers in reversing the concurrent findings of facts by the two Courts below, neither amounted to misreading of evidence on record by the two Courts below nor it was a case where Courts below had ignored any material piece of evidence on record while recording the findings of fact in the case. The trial Court as well, as Ist appellate Court had considered the entire evidence on the issues which consisted of both, oral as well as documentary evidence, and on consideration thereof reached the conclusion that appellant had succeeded in establishing the claim in suit against the respondent. This finding of fact could not be disturbed by the High Court under Section 115, C.P.C. We, accordingly, allow the appeal, B set aside the order of learned Judge in Chambers and restore the judgment and decree passed by the trial Court. We will make, however, no order as to costs the circumstances of the case.