' MUHAMMAD ALI MAZHAR, J.---By this Civil Revision Application, the applicant has challenged the proprietary of an order passed by the Additional District Judge, Sukkur on 3-6-2009 in Civil Appeal No, Nil of 2009 "Gul Muhammad v. Kaimuddin". The appeal was dismissed at admission stage in limine on the sole ground that the transaction in connection with the suit property was concluded on 25-9-2006 and the suit for pre-emption was filed on 1-8-2008, therefore, under Article 10 of Limitation Act, the suit was time-barred.
1. The short and snappy facts of the case are that the applicant had filed a Civil Suit No,19 of 2008 against the respondent for pre-emption/Haq-e-Shufaa and in Paragraph No,9 of the plaint, it was alleged that the cause of action accrued to the plaintiff on 31-7-2008 when he gained the knowledge regarding the sale transaction which was fraudulently concealed by the respondent.
The evidence of the plaintiff was recorded by the trial Court on 10-11-2008 in which, he reiterated the same facts that he came to know about the alleged transaction on 31-7-2008 and since the transaction was concealed by the respondent, therefore, he could not file suit earlier.
2. The applicant' Gul Muhammad argued that the suit was rightly filed within prescribed period of limitation but the learned appellate Court without examining the evidence dismissed the appeal merely on the basis of findings given by the trial Court in its judgment. He further averred that in his evidence, he satisfactorily explained the entire facts that as soon as he came to know as regards the sale transaction, he filed the suit instantaneously but without adverting to the question of limitation in its right perspective, the suit was dismissed but on appeal also, the appellate court had dismissed the appeal in limine on the sole ground of limitation without examining the R&P and evidence adduced by the parties in the trial court which caused grave injustice and hardship to the applicant.
3. The learned counsel for the respondent argued that while dismissing the appeal at admission stage the learned appellate Court has rightly considered the question of limitation and he further argued that the applicant is habitual in filing frivolous litigation without any lawful justification, therefore, the revision application is not maintainable and is liable to be dismissed. He further argued that under the revisional powers, this court can not upset the concurrent findings arrived at by the two courts below with proper application of mind.
4. The applicant and the learned counsel for the respondent both had mutually agreed that let this revision application be heard and disposed of at katacha peshi stage. In order to sift grain from the chaff, I have examined the judgment passed by the trial court and the evidence adduced by the parties. The trial court had settled six issues including the limitation but the suit was dismissed vide judgment dated 21-4-2009 on the sole ground of limitation. The point of limitation in this case is a mix question of law and facts. To decide the matter properly, it is necessary to examine the evidence led by the parties including the bone of contention as to when the applicant had first time acquired the knowledge of alleged sale and what he pleaded in relation to the accrual of his cause of action in the plaint.
5. The impugned order makes it obvious that without admitting the appeal or even without calling the R&P and or appreciating the evidence, the appellate Court has decided the point of limitation which in this case is a mix question of law and fact which could not be decided without examining the evidence available on record with regards to the alleged cause of action. The learned appellate Court should have considered the evidence available on record in which the plaintiff clearly asserted that he came to know about the alleged transaction in the year 2008. The statutory right of appeal confers the right of hearing of whole dispute and appellate Court ought to consider the entire controversy as regards to the facts and law. While deciding the appeal, the appellate Court placed reliance on the judgment reported in 2009 SCM R 630 which in this case is distinguishable and not germane to the issue of limitation but only relevant to section 13 of Punjab Pre-emption Act.
6. I have examined the memo of appeal in which the appellant in ground No,5 has alleged as under:-- "That the issue No,3 is in respect of limitation, it is well-settled law that limitation is a mixed question of law and facts can be decided on the evidence of the parties, the opponent party did not say any single word rather admitted that he did not inform the pre-emptor even not identified him,, the decision of lower court without evidence and brushing aside the evidence of plaintiff and decision on the mere argument is not justified, the suit is well within limitation, the Article 10 of the Limitation Act can be applied where right is found on law or general usage or on special contract, but in this case there is no special law, nor general usage nor special contract. The decision of lower court is wrong, illegal, and null and void".
7. Article 10 of the Limitation Act provides one year limitation to enforce a right of pre-emption whether the right is founded on law, or general usage, or on special contract. Time begins to run when the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. It is clearly transpiring from the contents of the plaint that the plaintiff filed the suit for pre-emption under Mahomedan Law on the ground that he is co- sharer of undivided land bearing S.No,859, admeasuring 3.04 Acres and the vendor Abdul Karim fraudulently managed to transfer his 20 paisa share of undivided property in favour of vendee Kaimuddin, (Respondent) without notice and knowledge of pre-emptor and other co-shareRs, First time it came into the knowledge of applicant when he disclosed this fact and wanted to secure the possession. It is further alleged by the plaintiff in the plaint that he immediately expressed his Haq- eShufaa and made talb-e-mowasibat and in presence of witnesses also fulfilled the formality of talb-e-ishhad. The bone of contention between the parties cannot be resolved unless the evidence led in the trial court is properly appreciated which has not been done by the learned appellate court in this case. Another reason of dismissal of appeal in limine is that the appellant argued that law of limitation is against the Injunction of Islam. No doubt under Article 203-D of the Constitution of Pakistan, the honourable Federal Shariat Court has jurisdiction to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam. In the memo of appeal no such ground was taken by the appellant and if it was orally argued by the applicant who was appearing in person even then, this cannot absolve the appellate court from his duty to decide the question of limitation whether the claim of plaintiff was justified or not keeping in view the date of knowledge of sale transaction pleaded in the plaint and provided him a right to apply which could only be judged from evidence.
8. The statutory right of appeal confers the right of rehearing the whole dispute unless expressly restricted in its scope and the appellate court, is not confined to the reasons which have been given by the subordinate court or the grounds for its decision. The right of appeal is a substantive and vested right and not as a matter of mere procedure.
' According to Order XLI, Rule 31, C.P.C., it is mandatory that judgment passed by the appellate court shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
This rule makes it apparent that for just and proper decision, the appellate court should state the points for determination and apply its independent judicial mind to the controversy involved between the parties and also examine the record for the purposes of pronouncing its judgment.
The phrase "points for determination" refers to all important questions involved in the case, therefore, this rule has been incorporated in the Code for framing the points for determination so that the judgment should be self-explanatory, illuminative and in the nature of a speaking order.
9. Every finding of fact is not immune from intererence in revisional jurisdiction when the Courts below commit jurisdictional illegality and this concept of jurisdictional illegality has been considered by the honourable Supreme Court in the case of Kanwal Nain PLD 1983 SC 53 and held that to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result, revisional jurisdiction is justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken. In 2010 SCM R 786, Brig. (R) Sher Afghan v. Mst. Sheeren Tahira and others, it was held that by now a well-settled principle of exercise of revisional jurisdiction under section 115, C.P.C. Is that if a finding of first Court of Appeal is based on no evidence or is arbitrary and fallacious, the Revisional Court is not denuded of its power to interfere with such a finding. This view was reiterated in Naziran Begum v. Khurshid Begum 1999 SCM R 1171 wherein it was held a finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by the High Court in exercise of its power under section 100 or 115, C.P.C. In 2008 SCM R 1454, (Nabi Bakhsh v. Fazal Hussain), it was held that no exception could be taken to the exercise of revisional powers and setting aside of the findings of the lower Courts even if they be concurrent if it had found that the said findings were based on misreading or non- reading of the material available on record. Similarly, in 2007 SCM R 838, (Ch. Muhammad Shafi v.
Shamim Khanum, it was held that First Appellate Court has a right to reverse the finding/conclusions of the trial Court while exercising power under section 96 of the C.P.C. Subject to the condition that First Appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal's case PLD 1969 SC 617. The High Court has wide power to reverse the finding of the First Appellate Court while exercising power under section 115, C.P.C. Having supervisory jurisdiction.
10. As a result of above discussion, the impugned order dated 3-6-2009 passed by the appellate Court is set aside and case is remanded with the directions to decide the appeal within two months after hearing the parties and considering the evidence available on record which is otherwise necessary for the appellate Court even for deciding the issue of limitation whether for claming right of pre-emption under the Islamic Law, the plaintiff/applicant being shafi-i-sharik had fulfilled all requisite formalities within the prescribed period of limitation which includes his intention to assert the right immediately on receiving information of sale Which is called Talb- emowasibat and also fulfilled another formality of Talb-e-ishhad.