1. This revision application under section 115, C.P.C. is directed against the judgment and decree of the IIIrd Additional District Judge, Dadit . in Civil Appeal No.14 of 1998, both dated 23-5-2000.
2. The proceedings arise out of dispute pertaining to property bearing No.469/A and C-469, situated in K.N. Shah Town. On the basis of a claim for execution of an agreement, dated 31-7-1988' pertaining to sale of the property for the sum of Rs.24,200 and handing over possession of the same on receipt of Rs.18,000 as advance possession was handed over to the respondent. It is further claimed that on failure of the respondent to execute the sale-deed, applicant instituted Suit No.88 of 1988 in the Court of Senior Civil Judge for specific performance with the prayer for execution of registered sale-deed of House No.C-469 and Western portion of House No.C-469/A on payment of the balance amount of Rs.6,200. Parties led their respective evidence and the suit was finally dismissed.
3. Aggrieved by the judgment and decree in Suit No.88 of 1988 applicant preferred an appeal under section 96 of the Civil Procedure Code, 1908 being Civil Appeal No.14 of 1998 finally decided by the judgment and decree of the IIIrd Additional District Judge, Dadu, dated 23-5-2000, dismissing the appeal of the applicant.
4. Heard the learned counsel for the parties.
5. Learned Advocate challenge the judgment on the ground that the judgment of the learned IIIrd Additional District Judge is violative of Order XLI, Rule 31, C.P.C. as the evidence of witnesses is not discussed in detail. Reliance is placed on the case of Iftikharuddin Hyder Gardezi v. Central Bank of India 1996 SCMR 669. He further stated that the judgment does not qualify to be a judgment in the meanings of Order XLI, Rule 31, C.P.C. Learned counsel argued that the lower Court failed to appreciate the evidence on record and thus, acted with material irregularity. Reliance is placed on the case of Nasir Abbas v. Manzoor Hyder Shah PLD 1989 SC 568. That the Appellate Court is required to reassess the evidence produced and examine the findings of the trial Court and only after giving reasons for upholding or reversing the same the appeal should be decided. Reliance is placed on the decision in the case of Mehrban v. Hamid Khan 1985 CLC 1780 and Hassan Shah v.
6. Malook Shah 1987 CLC 2281.
7. Learned counsel further argued that as a consequence of the above findings arrived at by comparison of signatures by the Court is illegal. Reliance is placed on the case of Dr. Major Abdul Rahat Khan v. Muhammad Iqbal PLD 1989 Kar. 102 and Articles 59 and 84 of Qanun-eShahadat Act as reported in the case of Muhammad Kabeeruddin v. Muhammad Muneeruddin 1993 CLC 747.
8. Learned counsel for respondent has appeared on pre-admission notice. He has opposed the application. He argued that in the present case all points have been discussed in sufficient detail to arrive at a conclusion by the learned Appellate Court and there has been no violation of the provisions of Order XLI, Rule 31, C.P.C. He produced the case-law on the point that substantial compliance depending upon nature of judgment against appeal is not a rule that may vitiate a judgment and make the same a nullity and would not vitiate the judgment and make it wholly void.
9. He argued that compliance of Order XLI, Rule 31 would be adequately made if there has been substantial consideration of all relevant points determined in the suit or appeal and the First Appellate Court need not refer to every item of evidence or document taken into consideration by the trial Court. Sufficient compliance is observed by giving views on the evidence on record.
10. Reliance is placed on Roshi v. Mst. Fateh PLJ 1982 SC 478, Umeruddin v. Ghazanfar Ali PLD 1985 Lah.
498. Sindh Flour Mills Ltd. v. Abdul Hussain Masooji Jafferi 1965 (West Pakistan) Kar. 567, Akhtar Begum v. Allah Jawaya AIR 1936 Lah. 543 and Darya Thathera v. Narain Thathera AIR 1931 All. 597.
11. Learned counsel stated that present case is on a far better footing as the issues have been dealt with by the learned trial Court the judgment and the findings of the judgment in the learned Appellate Court are based on proper appraisal of evidence.
12. On the point of arriving at a finding after comparison of handwriting learned counsel argued that Court is entitled to compare handwriting and examination by an expert. In every case it is not directed by any rule or law. That finding of trial Court by comparing signatures in dispute with the admitted, signature is a legal procedure adopted by the Court and upheld by the Honourable Supreme Court, as such it is within the powers of the Court. Reliance was placed on the case of Mst.
13. Ummatul Waheed v. Mst. Nasira Kausar 1985 SCMR 214. Ghulam Rasool v. Sardarul-Hassan 1997 SCMR 976 and Messrs Waqas Enterprises v. Allied Bank of Pakistan 1999 SCMR 85.
14. Learned counsel also argued that this is the case of concurrent finding of facts recorded by the two Courts below and did not suffer from misreading, non-reading or misconstruction of the facts by the Courts below, as such, there is no material irregularity and illegality in the exercise of jurisdiction, as such, the same do not call for interference with in exercise of revisional jurisdiction.
15. Reliance is placed on the case of Muhammad Sadiq v. Imamuddin 1994 CLC (Lah.) 103 and Haji Ghulam Rasool v. The Chief Administrator of Auqaf 1995 CLC (Pesh.) 696.
16. From the perusal of the available record the judgment of the trial Court is based on the conclusion arrived at after examination of the evidence which has been discussed and finding of facts have been arrived at on the basis of the same which do not merit any interference by this Court in exercise of the powers under section 115, C.P.C. The concurrent findings of fact as to the signatures of the respondent after comparison by the respective Courts do not warrant interference. In the case of Iftikharuddin Hyder Gurdaizi v. Central. Bank of India Limited the Honourable Supreme Court was pleased to set aside the judgment as it was announced 8 months after the date of hearing and all the points argued and relied by the appellants in that case were not considered. It is not so in the instant case. In the case of Nasir Abbas v. Manzoor Hyder Shah it has been held:-- "It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court."
17. The instant case does not involve any misreading or the resulting erroneous conclusion or failure to take notice of any vital fact. Weighing of evidence for the purpose of arriving at a conclusion is the normal function which has been done by both the Courts taking into consideration the facts available on record and no vital fact is ignored. The reasons for reaching the conclusion are required to be mentioned which is done in the present case. As held in the case of Mehrban v.
18. Harald Khan. Facts in the cases of PLD 1989 Kar. 102 and 1983 CLC 747 are also distinguishable where comparison of signature was made in chambers in absence of the counsel for the parties and it has been observed that the power to compare the signatures, available to the Courts, should be exercised with caution in the present case no such ground has been substantiated by the learned counsel and the appellate Court has not erred in comparing the signatures as held in 1994 CLC 102, 1999 SCMR 85, 1997 SCMR 976 and 1985 SCMR 214. The law on the point of concurrent findings of fact and reappraisal of evidence are very limited has been settled by the Honourable Supreme Court in the cases of Muhammad Umer Baig v. Sultan Mahmood Khan PLD 1970 SC 139, Abdul Khaliq v. Rashid Ahmed 1999 MLD 2156, Kanwal Nian v. Fateh Khan PLD 1983 SC 53 and Zareen Khan v. Mureed Khan 1998 CLC 1794 wherein it is held that:-- "----S. 115---Revisional jurisdiction exercise of---Powers of High Court in revisional jurisdiction under S.115, Civil Procedure Code are very limited---On reappraisal of evidence, even if different view is possible, High Court cannot substitute its own view and upset findings of facts concurrently arrived at by Courts below---Such findings can only be interfered with if Courts below have misread evidence on record or have committed any jurisdictional error."
19. In view of the above discussion the appellate Court has acted within its jurisdiction without any material irregularity or illegality and this application is accordingly dismissed with no order as to costs.