MUHAMMAD NOOR MESKANZAI, J.-- This civil revision petition under section 115 C.P.C. Is directed against the judgment and decree dated 29 March, 2005 passed by the Additional District Judge-1, Quetta, whereby Civil Appeal No,31 of 2004 filed by the petitioner was dismissed and the judgment and decree dated 3rd August, 2004 passed by Civil Judge, Quetta was maintained.
2. Facts as collected from the record are that petitioner (hereinafter referred to as the plaintiff) filed a civil suit for declaration and permanent injunction against the predecessor-interest of respondent (hereinafter referred to as the defendant) in the year, 2002. It was the case of petitioner that a hotel and a godown situated at Zhob Road, Kuchlak were leased out to the plaintiff by the father of respondent against monthly rental amount of Rs,3000 and agreement dated 28th August, 1988 was executed between the parties. It was further stated that property in question was a Kacha construction i.e. Of mud. The predecessor-in-interest of defendant failed to realize his liability with regard to the repair of the property damaged either by rain or by long span of time. According to plaintiff there was a water vela behind the back wall of godown which was damaging the said wall.
The defendant was requested to stop the flow of water but he did not adhere to it, with the result on 2nd November, 2001, the back wall of godown consisting nine rooms stood demolished. This fact was reported to defendant who did not pay any attention. Besides, a report/F.I.R. With Police Station, Kuchlak was lodged which was entered as Report No, 36 in Roznamcha. It was further mentioned in the plaint that eviction application filed against the plaintiff was dismissed on 29th June, 1994 and suit filed against the petitioners was dismissed on 24th April, 1999.
3. Written statement was filed by the predecessor-in-interest of respondent/defendant, wherein numbers of preliminary objections were raised. The locus standi was called in question with further objection i.e. The petitioner/plaintiff has sublet the property. On merits, the suit was contested and the version in plaint was vehemently denied and disputed. According to Para No,2 of written statement, the godown has been sublet to one Fatal, who is using the same as Sheep Dan, which has become useless and a heavy loss has been caused to the property of defendant and said fact has been confirmed by the report of Civil Nazir appointed as local commissioner in case title Obaidullah v. Haji Sher Muhammad. The factum of any villa behind the godown was vehemently disputed with further explanation that since the godown has been sublet and is being misused, which resulted in damaging and dismantling the nine rooms.
4. Out of the pleadings, the learned trial Court framed following issues:---
(1) Whether there is a Water Viala behind the back wall of property/g6down, due to which flowing godown consisting of nine rooms fell down?
(2) Whether the plaintiff is entitled to the relief claimed for?
(3) Relief?
5. Plaintiff in order to discharge his onus produced P.W.1 Fateh Muhammad and P.W.2 Abdul Barri and got recorded his own statement. On the other hand defendant produced D.W.1 Muhammad Ilyas, D.W.2 Mir Waiz Khan and Abdul Ghani son of Haji Sher Muhammad got recorded his statement as attorney for defendant. Thereafter, vide judgment and decree dated 3rd August, 2004, the suit filed by the plaintiff was dismissed. Feeling aggrieved with the judgment, an appeal was filed before District Judge, Quetta, which was made over to Additional District Judge-I, Quetta.
The learned Additional District Judge-I, Quetta after hearing the parties dismissed the appeal through impugned judgment dated 29-3-2005 followed by the decree of even date. Dissatisfied with the appellate judgment and decree present petition has been filed which was dismissed for non-prosecution on 20-11-2006 however, restored on 8-12-2006.
6. Mr. Abdul Jalil Khan Barakzai, learned counsel for the petitioner contended that the impugned judgment and decree passed by the lower forums are contrary to law, facts and justice. It was maintained that both the Courts below have misappreciated the facts and misread the evidence available on record. It was contended with vehemence that the appellate Court did not adhere to the mandatory provisions of Order XLI, Rule 31, C.P.C. Nor material available on record was discussed by the appellate Court. Learned counsel further contended that petitioner/ plaintiff has paid rupees one lac and ninety five thousand in advance to the respondent/defendant besides is also paying monthly rent in sum of Rs,3000 without failure on the part of petitioner but this fact was not taken into consideration. It was strenuously urged that the respondent owe a legal duty towards rented premises because as owner he is bound to repair premises in question.
7. Mr. Amanullah Khan Kakar, learned counsel for the respondent submitted that both the courts below after proper appraisal of evidence has rightly dismissed the suit of petitioner. It was further submitted that the suit filed by the petitioner was not competent because the petitioner/ plaintiff has sublet the godown which was used for the purpose of sheep Dan by the Subletee. The very purpose of tenancy has been frustrated for which it was rented. There is no misreading or non- reading nor there is any jurisdictional defect in the impugned judgments and decrees, therefore, while exercising revisional jurisdiction this Court is very slow and most often reluctant to interfere with concurrent findings of facts based on proper appraisal of evidence.
8. I have heard learned counsel for the parties and perused the available record minutely. Perusal of record reflects that petitioner/ plaintiff in order to prove his case produced three P. Ws. P. W.1 Fateh Muhammad supported the plaint. However, plaintiff in cross expressed their ignorance that in godown cattle are kept. It was further admitted that at the distance of 4 feet from wall there is a ditch and thereafter the agricultural land of defendant is situated. He further expressed his ignorance regarding the distance between the agricultural land and godown. He denied that the wall has dismantled. Voluntarily stated that he has no knowledge that wall has been dismantled by Obaidullah. P.W.2 .Abdul Barri also supported the plaint but since portions of cross-examination of P.W.2 and statement of P.W.3 have not been annexed with the petition, therefore, statements of P.W.2 and P.W.3 is not liable to be considered in view of bar contained in subsection (2) of section 115, C.P.C., which is reproduced hereinunder for ready reference:--- "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,] "
9. The D.Ws. Produced by the defendant/respondent has supported his contention. Perusal of the impugned judgment and decree reveal that the trial Court after proper appraisal of material available on the record has drawn justifiable conclusions. The learned counsel for the petitioner could not point out any misreading or non-reading of evidence. In such circumstances no exception could be taken with the findings given by the trial . Court. As far as the objection regarding non-compliance of provisions of Order XLI, Rule 31, C.P.C. Are concerned I have perused the judgment rendered by the appellate Court. The learned appellate Court has appreciated the evidence produced by the parties and the C material Issue No,1 which, of course, is the material issue has been considered in the light of evidence available on record. Moreover, since the judgment of trial Court has been upheld, in such circumstances the law requires the substantial compliance of the rule which has been complied with. There is no cavil with the legal proposition that the concurrent findings of fact cannot be disturbed, even if upon reappraisal, another view is possible. Perusal of plaint reflects that agreement dated 28-8-1988 has been referred to but the same has neither been appended with plaint nor produced and exhibited in evidence. So much so the said document has not been placed on record before this Court. Similarly in the list of documents at S.No,4 .a judgment passed by Senior Civil Judge/Rent Controller Quetta dated 29-6- 1994 has been referred to but the said judgment also does not form part of the record. Though I am not going to dismiss the petition for want of non-compliance of subsection (2) of section 115 C.P.C., nonetheless petitioner cannot take the benefit of document and evidence referred to but not made available, despite the lapse of 5 yeaRs,
10. As discussed hereinabove, both the courts below after proper appraisal of evidence referred to hereinabove have reached at concurrent D findings of facts which neither reflect misappreciation of evidence nor suffer from any legal infirmity. Therefore, the concurrent findings of fact so arrived at are not liable to be disturbed by this Court in exercise of its revisional jurisdiction. Hence I find no merits in this revision petition, which is accordingly dismissed with no order as to costs.