' AZMATULLAH MALIK, J. Petitioners through the instant Civil Revision have questioned the judgment and decree dated 14-9-2006 of the learned Additional District Judge-III, Nowshera, whereby he dismissed the appeal filed by them and upheld the judgment and decree dated 24-3-2006 of the learned Civil Judge-II, Nowshera.
2. Learned counsel appearing on behalf of the petitioners by referring to a judgment rendered in the case of Bendeshari Prasad v. Lekhraj Sahu and others (AIR 1915 Patna 284), contended that a Court of law will not aid persons in enforcing the performance of an illegal contract or assist them to recover back the property or money which they have given away under such an illegal contract.
The learned counsel while referring to the judgment rendered in the cses of SarjooPrasad Missir and others v. Nanoo Rai and others (AIR 1916 Patna 290), Purvada Venkata Subbayya v. Attar Sheikh ast a n that Iwhen (36th)e1a9g4r9e e eandt r oa ns which the respondent claimed anything was unlawful and void ab initio, he will not be entitled to recover anything from the petitioners. The learned counsel while placing reliance on the judgments rendered in the cases of PLD 257 Dacca 233 Messrs P.K. Basak and Co. Ltd. v. Messers Gossen and Co. Ltd.), PLD 1971 Dacca 112 (Hossain Ali Khan v. Firoza Begum) and 1984 SCM R 1 (Dr. S. Jalil Asghar v. Messrs Atlas Industries and Trading Corporation and another) submitted that when the whole controversy in the case revolve around the alleged contract of partnership, Exh.P.W.7/1, the money paid to the petitioners cannot be recovered. The learned counsel by elaborating his arguments contended that where the material aspect of the matter was totally ignored by the Courts below, the suit of respondent No,1 is liable to be rejected, even if, all of the averments made therein are accepted to be correct because of a void agreement. The impugned judgment and decree being based on misreading and non- reading of evidence, is liable to be set aside.
3. As against that, the learned counsel appearing on behalf of the respondent contended that when the controversy regarding the agreement/contract has neither been taken in the plaint, written statement nor pleaded before the Courts below, the same cannot be agitated before this Court, that too, in the exercise of its revisional jurisdiction.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. A perusal of the impugned judgment and decree of the learned Additional District Judge would reveal that while refusing the claim of the petitioners by decreeing the suit of respondent No,1, he took all the precautions to protect the legal rights of the decree holder. The A record shows that respondent No,1 has duly proved his claim with reference to the evidence on record in respect of an amount of Rs,7,00,000 which is still outstanding against the petitioners. Marginal witnesses P. Ws. 6 and 7 have also authentically verified that the deed was duly executed by respondent No,1 where an amount mentioned above was liable to be returned to him by the petitioners. I, therefore, do not think that the Courts below failed to exercise jurisdiction vested or exercised jurisdiction not vested by passing the impugned judgments and decrees, so as to justify interference therewith in the exercise of revisional jurisdiction of this Court. The view taken by the Courts below in this behalf appears to be correct. The mere ipse dixit of the petitioners will not be allowed to prevail. I, thus, don't feel persuaded to interfere with the concurrent finding of fact which is based on proper appraisal of evidence and the same cannot be said to Have been based on misreading or non- reading of evidence.
6. For the reasons discussed above, this revision petition being without substance is dismissed.