Muhammad Reaz Akhter Chaudhry, J.--This appeal is directed against the judgment and decree of the High Court of Azad Jammu and Kashmir dated 13.10.2004, whereby the appeal filed by the appellant was dismissed by the learned single Judge of the High Court.
2. The relevant and necessary facts for disposal of instant appeal are that the appellant brought a suit for recovery of sum of 25000 Saudi Riyal equal to Rs, 4,25,000/- of Pakistani currency in the Court of District judge Pallandri. After the trial, the suit was dismissed by the learned District Judge on 14.4.2004. Feeling aggrieved from the said judgment and decree, the appellant filed an appeal before the High Court. The learned. single Judge of the High Court dismissed the appeal vide his judgment dated 13.10.2004. Now the instant appeal has been filed against the said judgment.
3. Mr. Asghar Ali, Malik, the learned counsel for the appellant, argued that both the lower Courts have not appreciated the evidence according to the norms of appreciation of evidence. It was next submitted by the learned counsel that the defendant borrowed 25000/- Saudi Riyal from the plaintiff (appellant) in Saudi Arabia but did not return the same. He submitted that there was sufficient evidence against the respondent but the same has not been properly read by both the lower Courts. In this way mis-reading and non-reading of evidence was committed by both the lower Courts. It was further argued by the learned counsel that the learned District Judge has held that he has jurisdiction to try the suit while the learned Judge of the High Court has held that the trial Court had no jurisdiction to adjudicate upon the subject-matter of suit. The learned Judge of the High Court was not competent to hold as such because the decision regarding jurisdiction had attained finality as no appeal was filed by the respondent against the said judgment.
4. While controverting the arguments of the learned counsel for the appellant, Sardar Muhammad Ishaque Baloch, the learned counsel for the respondent, argued that the judgment and decree of the High Court is based on sound, cogent and sold reasoning, which do not require any indulgence by this Court. The learned counsel further argued that, according to suit, the money was borrowed in Saudi Arabia therefore, the Civil Court at Pallandari has no jurisdiction and as such has been rightly held by the learned Judge of the High Court. It was further submitted by the learned counsel that there are concurrent findings on the questions of facts. No mis-reading or non-reading of evidence has been committed by the lower Courts.
5. We have heard the learned counsel for the parties, perused the record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties. A perusal of record shows that Issue No, 2 framed by the trial Court was that "whether the Court has the jurisdiction to try the suit". The learned District Judge decided this issue in favour of plaintiff on 29.6.2002 but the learned Judge of the High Court has held that the learned District Judge Pallandri has no jurisdiction with respect to an agreement or undertaking which had taken place at Saudi Arabia. It was further held that notwithstanding the decision of trial Court, the High Court can revise any illegal order in exercise of revisional jurisdiction available to it under Section 115 clause (d) of CPC read with Section 46 of the AJ&K Interim Constitution Act, 1974. Now the question emerges that when the decision regarding jurisdiction has been pronounced by the learned District Judge in favour of plaintiff then despite the fact that when no appeal was filed by respondent against the decision, the learned Judge of the High Court was competent to set aside the finding regarding jurisdiction while exercising the revisional powers? Section 115 CPC confers revisional jurisdiction upon the High Court and it applies to cases involving illegal assumption, non-existence or irregular exercise of jurisdiction. The jurisdiction under Section 115 CPC is purely discretionary. Therefore the High Court while exercising the jurisdiction under Section 115 CPC has to ensure that the discretion is exercised judicially. It is pertinent to note that discretionary powers should be exercised where it is necessary for the ends of justice.
6. Section 46 of the AJ&K Interim Constitution Act, 1974 contains that the-High Court shall superintend and control all the other Courts which are subordinate to it. The basic object of both the provisions is to confer jurisdiction upon the High Court with the purpose that no injustice should be done to any person. Any error in the decision of trial Court as to its jurisdiction is open to revision. The High Court can exercise even suo motu revisional power where it is found that the order passed by the subordinate Court is contrary to statutory provision and/or the same is without jurisdiction. In such like circumstances the constitutional provision of superintendence and control of High Court can also be invoked for correcting the jurisdictional error. This view finds support from a case reported as Secretary Augaf Department and others v. Syed Sher Ali Shah and others [PLD 1999 Kar. 417] wherein at page 420 it has been held as follows: "...The High Courts are exercising even suo motu revisional powers where it is found that the order passed by the subordinate Courts was contrary to the statutory provision and/or without jurisdiction. In such circumstances, the constitutional provision of superintendence and control of the High Comets was also invoked to correct jurisdictional error of the subordinate Courts. In Mst.
Farida Parveen v. Qadeer-udDin Ahmad Siddiqi PLD 1971 Karachi 118 at 127, it was held inter alia by a learned single Judge of this Court, Muhammad Haleem J.) (as his lordship then was) that the words 'supervise and control' used in Article 203 of the Constitution of Pakistan, 1962 empower the High Court to exercise judicial control over the decisions of the subordinate Courts. The same view was followed by, another Judge of this Court, Tanzil-ur-Rehman, J. (as he then was) in the case of Morio Goth Welfare Association vs. Muhammad Bachal and 6 others (1985 CLC 1680 at 1691)."
The aforesaid report clearly contains that where any order passed by a subordinate Court is without jurisdiction then the High Court can set aside such order while exercising the revisional jurisdiction. This view further finds support form another case titled, HO Abdul Jalil v. Anjuman Jame Masjid Haquani (1996 MLD 818).
7. In the instant case, according to pleading of parties, the money was borrowed by. the defendant from the plaintiff at Saudi Arabia and agreement also took place between the parties at Saudi Arabia. When the money was borrowed at Saudi Arabia and agreement also took place there, then bow the Court of District Judge Pallandri has jurisdiction to adjudicate upon the subject-matter.
Therefore the learned Judge of the High Court has rightly held that the Civil Court at Pallandari has no jurisdiction because the agreement or undertaking between the parties took place at Saudi Arabia.
8. It is also pertinent to note that the plaint filed by the appellant (plaintiff) did not disclose that on which date the money was borrowed by defendant from plaintiff. The plaint only contains that the dependant has to pay 25000 Saudi Riyal equal to Rs, 4,25,000/- of Pakistan currency and he has accepted it on 29.4.2001. The plaint did not contain whether the defendant has admitted this amount in Saudi Arabia or in Pakistan. It would not be out of place to mention here that there are concurrent findings on the questions of facts and it is well settled principle of law that a concurrent finding on the question of fact shall not be disturbed unless the same is based on some mis- reading or non-reading of evidence. In the instant case although the learned counsel for the appellant argued that mis-reading and non-reading of evidence was committed by the lower Court, but when he was confronted to explain as such, he could not explain it. The learned counsel only submitted that the evidence was not properly appreciated by both the lower Courts . It is well settled principle of law that this Court shall not embark upon the fresh appreciation of evidence, while considering second appeal even if erroneous view has been drawn by the lower Court. Even otherwise we have gone through the entire evidence . It does not disclose whether any agreement took place between the parties in Pakistan or any money was given to defendant as loan within the jurisdiction of District Court Pallandri. The plaintiff has failed to prove his case therefore both the lower Courts have rightly dismissed the suit.
9. In view of above, finding no force in this appeal, it is hereby dismissed.