' MUHAMMAD TASNIM, .--- Since common questions of facts and law are involved in these seven revision applications, they are being disposed of by this common judgment.
2. Through these seven revision applications the applicants have challenged the judgment and decree dated 27-11-2004 passed by learned Ist Additional District Judge, Malir-Karachi, in Civil Appeals Nos.18, 19, 20, 21, 22, 23, 24 and 25 all of 2001.
3. Brief facts leading to these revision applications are that the applicants mentioned above filed their respective Suits being Nos.89, 106, 107, 127, 135, 136 and 143 all of 1999 (these are new numbers originally the suits were filed in the year 1993) for declaration, possession and permanent injunction in respect of Plots Nos. 287, 288, 289, 290, 300, 301, 302 and 303, Block-C, Bhitiabad, Karachi. After service of summons respondent No,1 appeared and filed written-statement. However, respondents Nos. 2 and 3 did not take part in the proceedings and were declared ex parte. Since common question of law and facts were involved in all the suits the learned trial Court consolidated all the suits vide its order dated 1-12-1997. Suit No,135 of 1999 was treated as leading case. The following issues were framed by the learned trial Judge on 10-10- 1998:--
(i) Whether the suit as framed is not maintainable?
(ii) Whether the suit is barred by law?
(iii) Whether any cause of action has been accrued to the plaintiffs for filing of these suits?
(iv) Whether the plaintiff has undervalued the suit?
(v) Whether the plaintiff has ever been in possession of suit plot?
(vi) Whether the plaintiff has been dispossessed from the suit plot at the hands of defendants?
(vii) Whether the defendants have carried out illegal construction in violation of the Court order?
(viii) Whether the defendants have committed wilful contempt of this Court?
(ix) Whether the plaintiff is entitled for the relief claimed?
(x) What should the order be?
4. All the applicants led evidence through their legally constituted attorney Mst. Rehmat Khatoon as P.W.1. They also examined one Muhammad Azeem as P.W.2. P.W1 also brought on record number of documents during the course of her evidence. All the aforesaid documents were exhibited.
Respondent No,1 examined himself as his witness in all the suits. Learned trial Judge after hearing the parties decreed Suits Nos. 135, 143, 89 and 136 of 1999 in respect of Plots Nos. 287, 288, 289 and 290, Block C, Bhitiabad, Karachi, directing the respondents to hand over the vacant possession of the suit plots to the plaintiffs in those suits vide judgment and decree dated 17-5-2001 and 26-5- 2001. Suits Nos. 107, 106 and 127 of 1999 were dismissed. Respondent No,1 filed appeal against judgment and decree in Suits Nos.135, 143, 189 and 136 of 1999 being Civil Appeals Nos. 22, 23, 24 and 25 of 2001 whereas the applicants who were plaintiffs in Suits Nos. 107, 106, and 127 of 1999 filed Appeals Nos. 18, 19, 20 and 21 of 2001 before the appellate forum. The learned Appellate Court after hearing the parties allowed Appeals Nos. 22, 23, 24 and 25 of 2001 but dismissed Appeals Nos.18, 19, 20 and 21 of 2001 vide judgment and decree dated 27-11-2004. The applicants felt themselves aggrieved against the judgment and decree passed by the learned Appellate Court and have filed the present revision applications challenging the judgment and decree of the learned Appellate Court.
5. Mrs. Kausar Anwar, learned counsel for the applicants, has submitted that the learned Appellate Court has passed the impugned judgment and decree in a mechanical manner without application of judicial mind. She further submitted that oral as well as documentary evidence has not been properly appreciated by the learned Appellate Court. She further added that while disposing of the appeals learned Appellate Court has reversed the findings recorded by the learned Original Court without examining the material on record and without assigning any cogent reason for setting aside the findings recorded by the learned Original Court. Learned counsel for the applicants has further argued that there was ample evidence available on record to show that present applicants were in possession of the suit plots but the same has not been taken note of.
She further argued that in support of possession of the applicants documentary evidence was available on record which has not been considered. Learned counsel for the applicants further argued that learned Original Court has rightly appreciated the evidence and has decreed Suits Nos.135, 145, 89 and 136 of 1999 in accordance with record and law but the learned Appellate Court without adverting and going through the material on record has set aside the judgment and decree of the learned Original Court without any reason. In the end learned counsel for the applicants argued that learned Appellate Court in paragraph 11, typed page 14, of the judgment has based its findings upon a document produced by respondent No,1 which was issued by President of Welfare Association in respect of ownership of the suit plots.
' Learned counsel for the applicant submitted that author of such document was not produced and said document was not proved in evidence. Even otherwise, the said document was not title in respect of suit land. She added that Appellate Court has misdirected itself and has reached to an erroneous conclusion. Learned counsel for the applicants further submitted that all the plaintiffs were old residents of the society. Neither the applicants nor the respondents have any title documents in respect of the properties in question. She further argued that since applicants were dispossessed illegally without due process of law they have approached the competent Court of jurisdiction for their restoration of possession. In the end she argued that judgment and decree of the learned Appellate Court be set aside. She further submitted that appeals filed by the applicants whose suits were dismissed by the learned Original Court have also been disposed of by the impugned judgment and decree without considering the material on record. She prayed that judgment and decree passed by the learned Appellate Court be set aside and the cases of the applicants be remanded to the Appellate Court with direction to hear the parties and decide the appeals strictly in accordance with law and also consider the evidence of the parties available on record.
6. In support of her contentions learned counsel for the applicants has relied upon the following case-law:-
(1) Allah Dino v. Haji Ahmed and others (PLD 2006 Karachi 148)
(2) Abdul Qadir and others v. Haji Ghulam Qadir and others (1996 CLC 1216)
(3) Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586)
(4) Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another (2008 SCMR 428)
(5) Mubarik Ali through L.Rs. v. Amroo Khan through L.Rs. (2007 SCMR 1714)
(6) Muhammad Hassan v. Khawaja Khalil-ur-Rehman (2007 SCMR 576)
(7) Ch. Muhammad Shafi v. Shamim Khanum (2007 SCMR 838)
7. On the other hand, Mrs. Zubaida K. Jamali, learned counsel for the respondents, supported the judgment of learned Appellate Court and submitted that judgment and decree passed by the learned Appellate Court is in line with the evidence on record and in accordance with law and does not call for any interference by this Court in its revisional jurisdiction. Learned counsel for the respondents has further argued that the learned Original Court without application of judicial mind and/or without appreciating the evidence on record had decreed Suits Nos. 135, 143, 89 and 136 of 1999. She further submitted that rest of the suits, namely, 107, 106 and 127 of 1999 were rightly dismissed by the learned Original Court. Learned counsel further submitted that learned Appellate Court has passed the impugned judgment and decree after considering all the material evidence on record hence does not call for any interference by this Court.
8. I have heard the learned counsel for the parties and perused the record as also case-law cited.
9. From the perusal of Issue Nos. (v) and (vi) quoted hereinabove it appears that these two issues are material issues and entire case hinges upon these issues. The learned Original Court in its judgment has held as under :- "As per prepared list of occupants, the disputed plots have been shown in the name of following occupants, ' Plot No,C-287 Aftab Ahmed Khan son of Sanaullah ' Plot No,C-288 Shoukat Hussain son of Abdul Rahim ' Plot No, C-289 Ghulam Muhammad son of Muhammad Ishaque ' Plot No,C-290 Qadir Bux son of Azmat Khan ' Plot No,C-300 Office of Sindh Awami Tehreek District East Karachi.
' Plot No,C-301 Office of Sindh Awami Tehrik District East, Karachi.
' Plot No, C-302 Office of Sindh Awami Tehreek District East Karachi.
' Plot No,C-303 Office of Sindh Awami Tehreek District East Karachi.
' On perusal of above it appeared that on 24-4-1993 the above named persons were in occupation of the said plots. Nobody has challenge the validity and genuineness of the said documents in any forum, therefore, the same will be considered, most important and relevant documents with regard to the possession of the occupants. According to the report of Official Assignee the plaintiffs Shoukat Hayat, Aftab Ahmed, Ghulam Muhammad and Qadir Bux were in possession of the Plots Nos. 287, 288, 289, and 290 while the Plots Nos. 300, 301, 302, 303 were in possession of Office of Sindh Awami Tehreek District East Karachi. It clears that the plaintiffs Shabir Ahmed, Aftab Ahmed Bahadur Khan and Muhammad Sulleman were not in occupation of Plots Nos. 300 to 303.
' Defendant has not placed any substantive material to justify his possession over the Plots Nos.
287, 288, 289 and 290 thus, it emerged that they had illegally entered in the above mentioned plots of the plaintiff described supra. "
10. On appeal the learned Appellate Court has dealt with these issues in paragraphs 8, 9, 10 and 11 of impugned judgment and finally concluded as under:- "................. I am therefore of considered opinion that plaintiffs have miserably failed to bring on record any single documentary evidence that they were in possession of the suit plots on the night between ll/15th August, 1993, and they have also miserably failed to bring on record any satisfactory evidence that they were dispossessed at the hands of defendants. I therefore answer both these issues in negative by reversing the findings of learned trial court, which are not based on the proper appreciation of evidence brought on record."
11. From the perusal of the aforementioned quoted extract from the judgment of learned Original Court it appears that trial Court had based its finding by considering all the documentary evidence and oral evidence available before him and has concluded as above. On the contrary, no doubt, the learned Appellate Court has dealt with Issues Nos. (v) and
(vi) in number of paras and on number of pages but all such paras contained the reproduction of entire deposition of the parties but the learned Appellate Court without appreciating the evidence, documentary or otherwise, has reached to an erroneous conclusion, hence cannot be sustained.
12. Since the powers of this Court have been questioned by Mrs. Zubaida K. Jamali, learned counsel for the respondents, by contending that findings of facts cannot be disturbed by this Court in its revisional jurisdiction. It is advantageous to quote the provisions of section 115 of C.P.C., 1908:- "115.-[(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
2 Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court, 3 Provided that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months.
13. From the perusal of the above quoted provisions of section 115 C.P.C, would show that the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. The revisional powers of High Court has been dealt with by the Superior Courts in a large number of cases.
14. On the scope of revisional jurisdiction of High Court a learned Single Judge of this Court in the case of Allah Dino has dealt with the revisional scope in the following words:-- "17. It needs no emphasis that the revisional jurisdiction of this Court is always discretionary and equitable in nature and no party is entitled to it as of right. The object of High Court while exercising its discretionary jurisdiction has always been to foster the justice, preserve the rights of the parties and to right a wrong. Precisely the discretionary revisional jurisdiction is meant to correct the errors and to check the mistakes and lapses committed by the Courts below so as to ensure that of the judgment/ orders passed by the lower Courts were not marred by lack of jurisdiction and to present illegal and irregular exercise of jurisdiction."
15. Similarly, another learned Judge of this Court in the case of Abdul Qadir has held as under "11. It is settled position in law that in the event of a conflict of judgment between the two Courts, findings recorded by the Appellate Court should ordinarily be preferred to the findings of the trial Court unless the same is not supported by legal evidence or is based on surmises and conjectures.
In the present case I am satisfied that the learned Appellate Court misdirected itself by taking a different view from the view taken by the trial Court and committed a gross error by misappreciating the evidence adduced by the parties. By adopting a view not supported by the material on record Appellate Court committed a jurisdictional error of law thereby causing injustice which earnestly deserves interference by this Court in exercise of its revisioal jurisdiction in order to do substantial justice and to obviate the miscarriage of justice."
16. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Din Supra has ruled that if the trial Court and the Appellate Court on the basis of same evidence had reached the conflicting conclusions. High Court, therefore, in its revisional jurisdiction under section 115, C.P.C, may apprise the entire evidence and to reach a just conclusion.
17. Similarly, in the case of Malik Muhammad Khaqan the Hon'ble Supreme Court of Pakistan held that it has been consistent view that when findings of facts of Trial and Appellate Courts are contrary to evidence and material on record and or are against law, the revisional Court would have jurisdiction to rectify the same so as to bring findings in consonance with evidence on record or to remove illegality surfacing from the judgment.
18. In another judgment of Mubarik Ali Supra after reviewing the case-law on the subject the Hon'ble Supreme Court of Pakistan came to the conclusion that interference in the judgments of Courts below in exercise of revisional jurisdiction was justified when findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken such findings are to be set aside.
19. Similarly, in the case of Muhammad Hassan supra it was held that in a case of divergent findings of the two Courts below the High Court will have to give due attention to the findings of Appellate Court unless it suffers from grave irregularity or the same are perverse or reasons given by the Appellate Court are not sustainable.
20. Keeping the above legal position in mind if judgments of two Courts below are examined it would be seen that the learned Appellate Court has not exercised its jurisdiction vested in him under the provisions of section 96, C.P.C. It is settled law that on appeal the entire case is open before the learned Appellate Court and the Appellate Court ought to have discussed the entire evidence and then should have reached to a just conclusion. From the reading of the appellate judgment it appears that learned Appellate Judge after quoting the evidence of the parties has neither discussed the same nor has appreciated the material and has recorded his finding without application of judicial mind. The findings of the learned Appellate Court are sketchy. Hence, cannot be sustained. On the contrary the findings of learned Original Court are more close to evidence on record. Since evidence on record has not been appreciated by the appellate Court it would be in fitness of thing to remand these cases to Appellate Court for decision afresh in accordance with law, surely after hearing the parties.
21. For the foregoing reasons in exercise of jurisdiction vested under section 115, C.P.C, the findings recorded by the learned Appellate Court cannot be sustained as the same has not been recorded by considering the material evidence on record. The learned Appellate Court has failed to exercise jurisdiction vested in it causing serious prejudice to the applicants.
22. In view of above, all the seven Revision Applications Nos.35 to 41 of 2005 are allowed with no order as to cost, the judgment and decree dated 27-11-2001 by the Appellate Court is set aside and the matters are remanded to the learned Appellate Court for a decision afresh. All the Appeals bearing Nos.18, 19, 20, 21, 22, 23, 24 and 25 of 2001 shall be deemed to be pending before the learned Appellate Court who shall hear the parties and decide the appeals strictly in accordance with law after considering all the evidence available on record. It is made clear that learned Appellate Court shall decide the appeals afresh without being influenced by any observation contained in the appellate judgment dated 27-11-2001 and the judgment passed by this Court.
23. Since these are very old matters the learned Appellate Court shall give preference to above appeals and shall decide the same within two months from the receipt of this order. Parties are directed to appear before the learned Appellate Court on 3-7-2010. No further notice shall be issued to the parties.
24. All the pending applications are disposed of, however intervenor is free to approach the Appellate Court and may make fresh application which shall be decided by the Appellate Court strictly in accordance with law.