' RANA BHAGWANDAS, J.--- Petitioners are aggrieved by Lahore High Court, Lahore judgment, dated 15-2-2005 dismissing their civil revision against concurrent findings of fact arising out of a suit for declaration, permanent injunction and possession filed by the respondent, which has been decreed throughout.
2. Respondent filed a suit for declaration, permanent injunction and possession against the petitioners in relation to the suit-land on the averments that he had let out the same on lease to petitioner No,1 for a period of two years against consideration of Rs,5,000 per annum with delivery of possession. In terms of the agreement between the parties, the petitioner No,1 was required to hand over peaceful possession of the land to the respondent after collecting Rabi crop of 1984.
However, when respondent asked him for delivery of possession, the former requested for one years' extension of lease. Meanwhile respondent applied for issuance of Agricultural Pass Book when he was surprised to learn from Halqa Patwari that the petitioners had got sanctioned a fictitious Mutation No,51, dated 28-7-1983 in their favor in collusion with their relative i,e, Amir son of Sarfraz. Respondent pleaded that he had never agreed to sell the land to petitioner No,1 nor appeared before any Revenue Officer for mutation of the land in favor of the petitioners, which was completely void, fraudulent, unwarranted, without consideration and inoperative upon his rights.
3. Suit was resisted on the grounds that the petitioners had purchased the disputed land against sale price of Rs,76,000; that the mutation in dispute was rightly attested by Revenue Officer in presence of Muhammad Amir son of Sarfraz, Patidar and Sultan Ahmad Lumberdar, who had identified the respondent.
4. On divergent pleadings of the parties as many as 7 issues were struck. Later, following two issues were added:- (4-A) Whether the plaintiff leased the suit property to the defendant in Rabi, 1982? OPP (4-B) Whether any sale took place between the parties of suit property and whether plaintiff sold the suit property in consideration of Rs,76,000? OPD ' Issues Nos.5 and 6 were recast as under:--
(5) If issue No,4-B is not found in affirmative, whether the plaintiff is owner of the suit-land and entitled to possession of suit property? OPP
(6) If issue No,5 is found in affirmative, whether Mutation No,51, dated 28-7-1983 is illegal, void, without consideration and as such inoperative on the plaintiff's right? OPP
5. Upon consideration and analysis of the evidence adduced by the parties, learned Civil Judge in the first round of litigation decreed the suit. Appeal, preferred against the judgment and decree was accepted and the suit remanded to trial Court for decision afresh vide judgment, dated 27-4- 1991. This judgment was assailed in Civil Revision No,978 of 1991, which was allowed by the High Court vide judgment dated 10-7-2001 whereby appeal was remanded to the learned District Judge for decision on merits according to law. After the remand of appeal, learned District Judge through his judgment dated 26-10-2001 affirmed the findings of fact recorded by trial Court, obliging the petitioners to invoke revisional jurisdiction of the High Court but without any success, hence this petition.
6. We have heard Mr. Gulzarin Kiani, learned Advocate Supreme Court for the petitioners whereas Mr. Muhammad Munir Peracha, learned Advocate Supreme Court has entered caveat on behalf of the respondent. With the able assistance of learned counsel, we have gone through the relevant evidence on record as well as the impugned judgments. Mr. Kiani has raised the following contentions:--
(i) that the statement of plaintiff/respondent was recorded after the close of defendant's evidence, in violation of the provisions contained in Order XVIII, rule 3 of the Code of Civil Procedure,. 1908 without affording a right of rebuttal to the petitioners;
(ii) that a civil revision within the contemplation of section 115, C.P.C. Is a right and not a privilege and in fact civil revision is an extended appellate jurisdiction for exercise by the High Court;
(iii) in order to reinforce his submission, learned counsel relied upon Karamat Hussain v.
Muhammad Zaman PLD 1987 SC 139; Shankar v. Krishna AIR 1970 SC 1 and Abdul Qayyum v. Ali Asghar Shah 1992 SCM R 241;
(iv) that the impugned judgment is not tenable in law because the Court has neither discussed the evidence nor the facts and documents of the parties brought on the record. As per the learned counsel, provisions of Order XLI, rule 31, C.P.C., are attracted in the case of a civil revision, which were completely ignored. He has referred to. Gouranga Mohan Sikdar v. Controller of Import and Export PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan PLD 1973 SC 173 and Abdul Rehman v State PLD 1983 SC 73;
(v) that respondent had moved C.M. No,1 of 2001 for adducing additional evidence before the High Court, which though allowed by a learned Judge, subject to all just and lawful exceptions vide order, dated 7-5-2003 was neither taken up nor decided at the hearing of the revision application.
7. Conversely, Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for the caveator submitted that no doubt respondent after reserving his right to examine himself later, appeared in the witness-box after the close of defence evidence, the fact remains that full opportunity of cross- examination was afforded to the petitioners, which was duly availed of. Furthermore, defendant Muhammad Feroze examined himself on 5-5-1990 after the statement of respondent, therefore, he was not deprived of leading evidence in rebuttal. On the question of extended appellate jurisdiction of the High Court in civil revision, learned counsel submitted that a line of distinction must be drawn between the powers of an appellate Court and Court exercising revisional jurisdiction. As to the impugned judgment, learned counsel submitted that in terms of Order XLI, rule 31, C.P.C., it was incumbent upon the Court to discuss evidence and to record reasons for setting aside the concurrent findings of two Courts but in the case of affirmation of concurrent findings by two Courts inferior to the High Court it is not obliged to reproduce and discuss evidence of the parties, as it is well-settled principle of law that ordinarily High Court would not interfere with concurrent findings of fact, if the same are founded on correct and lawful appreciation of evidence.
8. The provision of Order XVIII, rule 1, C.P.C. Provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin. Rule 2 of the (ibid) Order mandates that on the date fixed for hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Sub-rule (2) stipulates that other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
9. Adverting to the first submission of the, learned counsel, it may be observed that the respondent, in support of his claim had examined Abdul Rauf P.W.1 and closed his side by producing copy of Mutation No,51, Exh.1 and copy of extract from Register Haqdaran Zamin Exh.P.2. Thereafter petitioners entered upon their evidence and examined Gul Bahar Naib-Daftar Kanoongo for producing Mutation Entry No,51 and Parat Patwar in respect of such mutation through two officials i,e, D. Ws . Nos.1 and 2. They examined Muhammad Sher Patwari Halqa D.W.3, Malik Muhammad Ashraf, Naib-Tehsildar D.W.4, Sultan Muhammad Lumberdar D.W.5, Muhammad Amir D.W.6 and Muhammad Feroze D.W.7. No doubt, respondent appeared in rebuttal evidence but he was subjected to lengthy cross-examination by the petitioners without any interruption and without any protest. In the face of detailed cross-examination on all issues, petitioners cannot be heard to say that they were prejudiced by not affording a right of rebuttal, which was neither asked for nor even alluded to. Order-sheet dated 9-5-1990 tends to reflect that counsel for respondent stated that he did not propose to lead further evidence and would rely upon the evidence already brought on record. In the face of this stand, it can be legitimately concluded that the trial Court was fair in providing maximum opportunity of adducing evidence to both the parties, to which no exception can be taken. At any event petitioners miserably failed to demonstrate that by adopting this procedure they were prejudiced in any manner. Even otherwise, this ground was not raised before the High Court, therefore, they are legally estopped from raising this plea founded on mixed question of fact and law before this Court, for the first time. Identical question was raised in Allah Yar v. Ghulam Jeelani 1996 SCM R 662 in which Mr. Gulzarin Kiani, learned Advocate Supreme Court appeared for the petitioner, when it was repelled. Similar view was taken by this Court in Muhammad Abdus Saleem v. Tanveer Mirza 1996 SCM R 351, which completely demolishes the point raised at the Bar.
10. In Karamat Hussain (supra) it was observed that a privilege is some particular benefit or advantage conferred on a person or a class of persons, which other citizens do not enjoy while a right is some benefit conferred on a party by virtue of .a given law. It was held that the provisions of section 115, C.P.C. Confer on every person, who has litigated before a Court subordinate to the High Court the right to assert before the latter that the decision rendered by the subordinate Court against him would be liable to correction under its revisional jurisdiction. In Shankar (supra), Indian Supreme Court held that the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things, which are required to constitute appellate jurisdiction are the existence of relation of superior and inferior Courts or the power on the part of the former to review decision of the latter. When the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the C.P.C. Circumscribes the limits of that jurisdiction but the jurisdiction, which is being exercised is a part of the general appellate jurisdiction of the High Court, as superior Court. In Abdul Qayyum (supra), this Court observed that the distinction between the remedy by way of appeal and revision was not unknown. An appeal was the continuation of original proceedings before the higher forums for the purpose of testing the soundness of the decision of the lower Court. On the other hand, the remedy of revision was discretionary and the revisional Court had to proceed under certain limitations in interfering with the judgment and decree of the lower Court.
11. The scope of revisional powers of the High Court circumscribed by reason of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a certiorari and in fact goes behind that at least in two respect inasmuch; firstly, its discretionary jurisdiction may be invoked by the Court suo mote, and secondly the Court may make such order in the case as it thinks fit. In Kanwal Nain v. Fateh Khan PLD 1983 SC 53, it was held that the revisional powers of the High Court are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. Erroneous decisions of fact are ordinarily not revisable, except when the decision is based on no evidence, inadmissible evidence or perverse as to cause grave injustice. Revisional Court can interfere with findings of Courts below only if such Courts have exercised their jurisdiction illegally, in breach of some provision of law or with material irregularity. This jurisdiction is essentially discretionary-supervisory jurisdiction intended to be exercised in aid of justice and not to defeat the ends of justice. High Court would ordinarily interfere only when subordinate Court had exercised jurisdiction not vetted in it by law or had failed to exercise jurisdiction so vested or to have acted in exercise of jurisdiction illegally or with material irregularity. Just and fair order shall not be interfered with in exercise of revisional jurisdiction.
Where there be a jurisdiction in a Court to act, that jurisdiction must be exercised strictly in accordance with law. Its failure to exercise would tantamount to injustice. If the judgment is result of illegal exercise of jurisdiction, the same cannot be sustained. Where discretion has been exercised mala fide or arbitrarily for extraneous reasons, High Court is bound to interfere. Provision of section 115, C.P.C. Confers jurisdiction upon Court to examine as to whether Courts below had committed a jurisdictional error in passing impugned order or proceedings suffered from material irregularity or illegality warranting interference by High Court. No new ground can, however, be allowed to be raised by a party in revisional jurisdiction, for the first time.
12. It is well-settled that concurrent findings of fact by two Courts below cannot be disturbed by High Court in second civil appeal, muchless in exercise of the revisional jurisdiction under section 115, C.P.C. Unless the two Courts below, while recording the findings of fact have exercised jurisdiction not vested in them or failed to exercise jurisdiction so conferred. Scope of interference with concurrent findings of fact by High Court in exercise of revisional jurisdiction is very limited.
While examining legality of judgment and decree in exercise of its powers under section 115, C.P.C., High Court cannot upset finding of fact, however, erroneous such finding is, on reappraisal of evidence, and take a different view of evidence. Such finding of fact can only be interfered with by High Court if the Courts below had either misread evidence on record or while assessing or evaluating the evidence had omitted from consideration some important piece of evidence, which had direct bearing on issues involved in the case. Such findings would also be open to interference where approach of the Courts below was perverse.
13. Reverting to the third submission of the learned counsel for petitioners, suffice it to observe that it is well-entrenched principle of law that ordinarily High Court would not sit in appeal over the concurrent judgment of the trial Court and appeal Court in the exercise of revisional jurisdiction.
Scope and purview of revision, even though comparable with the powers of appellate Court is not synonymous with appellate forum in the strict sense of the term, as observed hereinabove.
Jurisdiction of High Court is limited and restricted to the cases where two Courts below have misread the evidence or excluded from consideration a material piece of evidence having bearing on the facts of a case; where impugned judgments suffer from error of jurisdiction or are based on extraneous considerations; the judgments of the forums below have violated settled principles of law for appreciation of evidence and lastly where the Courts below while dealing with a particular case have recorded reasons, which can be considered as perverse and whimsical. Grievance of the learned, counsel essentially is that in exercise of its revisional jurisdiction Lahore High Court did not discuss the evidence of the parties in details and confined to the observation that the Courts below had examined oral as well as documentary evidence while concluding that respondent had proved his case whereas the petitioner had not been able to substantiate the oral sale recorded vide Mutation No,51. In law, settled legal position is that the High Court would not interfere with concurrent findings of fact unless such findings fall within the exceptional clauses illustrated' hereinabove. Natural corollary that emerges, in the facts and circumstances of a case would be that in such eventuality High Court is not obliged to reappraise the evidence for recording judgment of approval. Position would, however, be otherwise if the High Court proceeds to set aside concurrent findings of the two Courts below or accepts or rejects the appellate Court judgment.
Even in regular second appeal, jurisdiction of the High Court is limited to the extent of interference on a question of law and not on facts. This being well-recognized proposition of law, we do not find any legal infirmity in the judgment of the High Court, which is neither slipshod nor arbitrary. In the present case, no substantial error or defect in the procedure adopted by the trial Court has been shown to have been committed nor has such procedure produced any error or defect in the ultimate decision of the suit on merits. Indeed concurrent findings of fact can be interfered with by the High Court in a civil revision only on the H grounds envisaged by law in clauses (a) to (c) of section 115(1), C.P.C.
1908. We are fortified in this view by the precedents reported as Altaf Hussain v. Abdul Hameed 2000 SCM R 314 and Azizullah v Gul Muhammad Khan 2000 SCM R 1647.
14. We may observe with respect that cases relied upon by Mr. Gulzarin Kiani are hardly of any assistance. Abdur Rehman (supra) is a decision arising out of a criminal revision petition under sections 435, 439, Criminal procedure Code whereas two other precedents deal with the requirements of the judgment of a High Court in a writ petition. The parameters of jurisdiction in civil revision under section 115, C.P.C. And writ jurisdiction under Article 199 of the Constitution are obviously I distinguishable. Likewise considerations for allowing a civil revision petition and a constitutional petition would be altogether distinct.
15. Taking up the last point raised by the learned counsel, suffice it to say this ground has not been taken in the memo. Of petition for leave to appeal, therefore, in law, petitioners are not entitled to agitate the same. Even otherwise, no party is entitled to produce additional evidence in appeal, muchless at revisional stage unless considered necessary by the Court. Mere entertainment of an application for additional evidence, subject to just exceptions, would not necessarily mean that the High Court had accepted the prayer for additional evidence as misunderstood by learned counsel.
Even otherwise, this ground was not raised before the High Court in the memo. Of revision petition, which cannot be allowed to be raised before this Court, for the first time. In law and equity, the petitioners are precluded from raising this point before this Court at this late stage, therefore, the contention is rejected.
16. For the aforesaid facts, circumstances and reasons, there is no merit in this petition, which must fail and is hereby dismissed.
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