The brief facts out of which above mentioned civil revision arises are, that on 15-1-1999 Muhammad Bilal, plaintiff, doing crockery business in Rahim Bazar, Dera Ismail Khan instituted suit against Abdul Wahid, defendant, dealing in the same business in Rahim Bazar, Dera Ismail Khan for recovery of an amount of Rs,49,533. It was asserted in the plaint that defendant had been purchasing various items of crockery from the plaintiff from time to time on loan; that the suit amount is outstanding against the defendant; that on refusal of the defendant to make payment, Saeed Ahmad Qureshi and Muhammad Hanif settled the matter at the instance of the plaintiff; that the defendant promised to pay Rs,5000 per month but he backed out his undertaking which led the plaintiff to approach Court of law to redress his grievance. The defendant in his written statement, denied the claim of the plaintiff and pleaded that nothing is outstanding against him and that the suit is liable to dismissal under the provisions of Order VII Rule 11 C.P.C. In view of the rival pleadings of the parties, under mentioned issues were formulated for trial:--
(1) Whether the plaintiff has got a cause of action and locus standi?
(2) Whether the plaintiff is estopped to sue due to his words and conduct?
(3) Whether the suit is within time?
(4) Whether a sum of Rs,49,533 is outstanding against the defendant and the plaintiff if entitled to recovery of the same?
(5) Relief.
2. The parties led evidence in support of their respective contentions. Learned Civil Jude, Dera Ismail Khan, seized of the matter, disbelieved the evidence produced by the plaintiff and dismissed his suit through his Judgment and decree dated 1-11-2000. An appeal was preferred there against before learned District Judge, Dera Ismail Khan which was accepted by order dated 31-5-2001.
Feeling aggrieved, the petitioner filed a Revision Petition (No,85 of 2001) before this Court which was allowed by order dated 5-11-2003 and case was sent back to learned District Judge, Dera Ismail Khan for decision afresh and on 9-2-2004 learned District Judge again accepted the appeal of plaintiff-respondent and decreed the suit with costs throughout. Feeling dissatisfied, Abdul Wahid has filed instant civil revision under section 115, C.P.C, challenging the impugned Judgment on a variety of grounds.
3. I have heard Mr. Muhammad Wahid Anjum, Advocate in support of the above revision and Mr. Muhammad Younis Thaheem, Advocate for the respondent. I have gone through the impugned Judgment and the material available on the record.
4. It has been mainly contended by learned counsel for the petitioner that the reasons given by the trial Court on the basis of evidence on the record are well founded and are weighty than the Court of appeal; that the Court of appeal without considering the material on record, in a sketchy and for unfounded reasons, by drawing illegal assumption of the fact has reversed the finding which cannot be allowed to remain intact. He also maintained that the impugned Judgment and decree of learned District Judge is against law and facts and suffers from the vice of misreading and non- reading of evidence on record. He further contended that the impugned Judgment does not substantially comply with the requirements of Order XLI, rule 31, C.P.C, and thus the impugned Judgment is not in accordance with law. The learned counsel also maintained that awarding cost of litigation is unreasonable and also against the law.
5. Conversely, learned counsel for the respondent refuted assertions of the petitioner, supported the impugned Judgment and decree of the Appellate Court and prayed for its sustenance maintaining that sufficient material was available on record to substantiate the claim of the respondent which was properly appreciated and that the impugned Judgment is not in violation of provisions of Order XLI, rule 31, C.P.C. In this regard, he relied on Government of the Punjab through Secretary Housing and Physical Planning and another petitioners v. Muhammad Ashraf respondent (2004 YLR 1245 Lahore).
6. Needless to emphasize that burden of proof always lies upon the plaintiff and plaintiff cannot be benefited from short comings of defendant's case, where the case of plaintiff was doubtful and the entire evidence of plaintiff was self-contradictory and highly discrepant. In the instant case, plaintiff-respondent has produced sufficient evidence in support of his case. P.Ws Sassed Ahmad Qureshi and Muhammad Hanif are totally independent witnesses. They have fully supported the plaintiff version. They have demonstrated complete unanimity on all material particulars of the case. They were subjected to fairly lengthy cross-examination but they could not be shaken. The learned District Judge has rightly placed reliance on the statements of these witnesses and reversed the findings of the trial Court. It stands established from the material on record that petitioner had been taking crockery items from the respondent on loan and an amount of Rs,49,533 was outstanding against the petitioner which was no paid Jespite repeated requests of the respondent.
7. It is settled principle of law that first appellate Court is well within its right to re-appraise the evidence on record and reverse the findings of the trial Court while exercising the powers under section 96, C.P.C. This Court has very limited jurisdiction to reverse the findings of First Appellate Court while exercising powers under section 115, C.P.0 unless and until the same is result of misreading and non-reading of evidence or any violation of the principles laid down by superior Courts. It is also settled principle of law that the First Appellate Court has right to re-appraise the evidence on record and after re-appraisal, to come to a different conclusion. While dealing with provisions of section 115, C.P.C, it was laid down by the Privy Council in N.S. Vankatagiri Ayyangar and another, v. The State Hindu Religious Endowments Board Madras (PLD 1949 PC 26):- "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which I material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
8Adverting to the other objection regarding non-compliance of provisions of Order XLI, rule 31, C.P.C, it needs no emphasis that an Appellate Judgment should state the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the appellate Court to record the points for determination, so that it can be determined whether the Court has dealt with all the points. The appellate Court must state its reasons for the decision. A Judgment in reversal must contain a definite finding on the questions involved and for its reason for reversal and the Appellate Court must fully examine all the arguments of the lower Court. The provisions of Order XLI, rule 31, C.P.C, are mandatory. The Judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. Juma Khan v. Mst. Shamim and 3 others (1992 CLC 1022 Karachi).
9. In the instant case, I find that the learned appellate Court has fully attended the controversy involved and stated the points arising for determination and its decision thereon. The impugned judgment is in consonance with the material on record and provisions of Order XLI, rule 31, C.P.0 are not found to have been violated in this case. The parties were fully alive to the controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions. No prejudice seems to have been caused to the petitioner.
10. Regarding imposition of compulsory/special cost under. Section 35-A C.P.C, it was held by this Court in Mir Nawaz Khan and others petitioners v. Gul Ayub Khan and another respondents (2003 CLC 1428 Peshawar):-- "The question that requires determination is as to whether the Appellate Court could award special costs under section 35-A, C.P.C, answer to this question is in negative. To award compensatory/special costs under section 35-A, C.P.C, it was necessary that the Court should reach to the conclusion that the claim or defence should be false or vexatious to the knowledge of the parties asserting it. Objection to such claim or defence should have been taken at the earliest possible opportunity and such claim or defence should not have been disallowed, withdrawn or abandoned wholly or in part but these factors are to be seen by the learned trial Court. If the said Court reaches to the conclusion that the above mentioned conditions were fulfilled then compensatory/special cost could be awarded to the other party. The Appellate Court under proviso attached to Order XLI, rule 33, C.P.C, is precluded from making such an order for payment of compensatory/special costs. The proviso is reproduced hereunder for convenience: "Provided that the appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
' A similar proposition came up for hearing in Sharaf Din and 7 others. v Mst. Maqbool Jan 1995 M LD 1602 and Azad Government, v. Afzal Shah 1996 M LD 260, in which it was held that the High Court while dismissing the appeal could not award cost under section 35-A on account of bar contained in Order XLI, rule 33, C.P.C."
11. The imposition of cost in the circumstance of the case, appears to be against the spirit of law.
The finding to this effect is errorneous and cannot be allowed to remain intact.
12. In view of what has gone above, it follows that the appellate Court after having discussed the total evidence on record and undertaking in depth study of the material on record, has taken a rightful decision which is in consonance with the evidence on the file. No misreading or non- reading of evidence is proved and at the same time, the appellate Judgment is not shown to have been tainted with any illegality or irregularity in absence of which no interference is permissible in revisional jurisdiction of this Court. There is no merit in this civil revision which is accordingly dismissed, leaving the parties to bear their own costs.