1. ' This revision application under section 115 C.P.C. Is directed against the judgment dated 30-10- 1986 and the decree dated 8-11-1986, passed by the learned II Additional District Judge, Mirpurkhas, in Civil Appeal No,1 of 1980, whereby the appeal filed by the respondent was allowed.
2. ' The relevant facts are that the respondent Ghous Mohammad Khan filed a suit for specific performance of contract, against the applicant in the Court of Civil Judge Mirkpurkhas, being 2nd Class Suit No,3 of 1974.
3. ' It was stated in the plaint that the agricultural land comprising Surveys Nos:108/1 to 6 and 109/1.
4. Admeasuring 19.28 acres was purchased by the defendant in auction from the Government. By an agreement dated 10th September, 1969, the defendant agreed to sell the said land to the plaintiff for a sum of Rs,5,910 and an earnest money of Rs,2000 was paid in part performance of the contract. It was agreed between the parties that when the auction in connection with the said land was confirmed by the Board of Revenue Sindh, the plaintiff will deposit. Rs,3,000 as instalment against the price of the suit-land. .It was further agreed that remaining amount of Rs,910 will be paid to the defendant by the plaintiff at the time of registration for Sale-Deed. It was averred that defendant had agreed to execute the registered Sale-Deed in favour of the plaintiff, as soon as the auction was confirmed and in part performance of the contract, the possession of the suit-land was given to plaintiff.. It was further contended that after confirmation of the auction by the Board of Revenue, the plaintiff offered the balance of purchase price and demanded for registration of Sale-Deed on 3-10-1973 but the defendants refused and hence the cause of action arose to the plaintiff for filing the suit. The plaintiff stated in the Plaint that he was ready to pay the remaining amount of Rs,3,910. The plaintiff prayed that the defendant be directed to execute the Sale Deed, in the terms of the Agreement dated 10-9-1969 and on his failure to do so, the Court may execute and register the Sale Deed through Nazir.
5. ' The defendant denied the execution of Sale Agreement and further contended that on 10-9-1969, when the alleged Sale Agreement is said to have been executed, the plaintiff was not the owner of the property. All other assertions in the plaint pertaining to the part performance of the contract were denied. It was contended that the sanction of the grant in respect of suit land was ordered on 21-9-1973 and the first instalment of the said grant was due on 10-10-1973 (The suit was filed on 9- 10-1973) . It was contended that the defendant became owner of the suit-land on 21-9-1973 and would become absolute owner after payment of all installments to the Government as per terms and conditions of the full rate grant. According to defendant, as per condition No,8, neither the grantee nor his heirs, executors and assigns, without permission in writing of the Deputy Commissioner, lease, mortgage, gift, sell or otherwise encumber the suit-land. The possession of the suit-land by the plaintiff was also denied and it was alleged that the defendant was in cultivating possession of the land.
6. ' On the pleadings of the parties, the following issues were framed:
(1) Whether the defendant executed an agreement dated 10-9-1969?
(2) Whether in pursuance of the said agreement the plaintiff paid, and the defendant handed over the possession of the suit-land?
(3) Whether the said agreement is enforceable by law?
(4) Whether the plaintiff is entitled to seek relief claimed for?
(5) What should the decree be?
7. ' The parties led their respective evidence and the learned Civil Judge decided Issues' Nos. 1 to 3 in favour of plaintiff and Issue No,4 in, negative for the reason that the plaintiff did not perform his part of contract, as he had not deposited Rs,.3,000 towards installment of the land, as agreed in the Sale. Agreement and, therefore, no cause of action accrued to him to file this suit for specific performance of the contract. Consequent to the finding on Issue No,4, the suit was dismissed.
8. ' The plaintiff/respondent being aggrieved filed Appeal before the District Court, Mirpuirkhas, being Civil Appeal No,1 of 1980, assailing the findings of learned Civil Judge on Issue No,4. The defendant/applicant did not file any cross-appeal or objections, assailing the findings against him on Issues Nos. 1 to 3. It was contended before learned First Appellate Court that since the defendant has not filed any cross-appeal or objection, therefore, the findings on Issue Nos. 1 to 3 against him have attained finality and, therefore, on the basis of findings of the learned Trial Court, on Issues Nos, 1 to 3, the appeal be accepted, the judgment of lower Court be set aside and the suit be decreed.
9. ' On behalf of defendant/applicant, it was contended that issue No,4 was decided correctly by the learned Trial Court. At the time of arguments, the findings on Issues Nos. 1 to 3 were assailed. The learned First Appellate Court held that, the learned Trial Court decided Issus Nos.1 to 3 in favour of plaintiff, meaning thereby that the execution of Sale Agreement was accepted and the earnest money of Rs,2,000 was paid to defendant and the ''defendant/respondent (before learned First Appellate Court) had not filed any appeal or cross objection, therefore, he cannot assail findings on these issues. Learned First Appellant Court, in support of its view placed reliance on the following judgments:
(1) Khiairati v. Alimuddin PLD 1973 SC 295.
(2) PLD 1983 SC 53.
(3) PLD 1985 Karachi 94.
10. ' The learned counsel for defendant/applicant contended that he can raise the point, decided against him in appeal, without filing any appeal or cross-objection. It was observed by the learned First Appellate Court that once a defendant has not filed an appeal or cross-objection against the finding given by the Civil Court against him, it has attained finality and cannot be challenged later on.
11. ' In respect of the findings of the learned Civil Judge, on Issue No,4, the learned First Appellate Court held that when auction was confirmed, it was for the defendant to inform plaintiff that the auction has been confirmed and he should deposit the amount on his behalf. The plaintiff could not know the confirmation of auction, and therefore, it was the duty of defendant to inform the plaintiff regarding the payment of the amount. Since it was not done by the defendant and on the contrary, the defendant went to the extent of denying the execution of Sale Agreement, which contention was not accepted by the Civil Judge, therefore, the learned Civil Judge was not correct in holding the plaintiff has not fulfilled his part of the contract. With these findings, the learned First Appellate Court reversed the finding of learned Civil Judge, set aside the judgment and decree and allowed the appeal. Result was that the suit was decreed.
12. ' Being dissatisfied with the judgment of learned First Appellate Court, the applicant/defendant has filed this revision application contending that the learned First Appellate Court ought to have reversed findings of learned Civil Judge on Issues Nos.1 to 3 and consequently, should have maintained the findings on Issue No,4. It was further contended that the learned First Appellate Court erred in holding that by non-filing of appeal or cross-objection, the findings of learned Civil Judge on Issue Nos. 1 to 3 has attained finality. It is contended in the memo. Of revision that the objections were raised to the findings on Issues Nos. 1 to 3 on the point of law and the point of law can be raised at any stage. In respect of any finding, even without filing of appeal or cross- objection.
13. ' Heard Mr. Riaz Ahmed Shaikh, learned counsel for . The applicant and Mr. Saeeduddin Siddiqui, learned counsel for respondent.
14. ' The main argument addressed by . Learned counsel for the applicant is that the learned First Appellate Court erred in law by holding that the defendant/respondent (applicant in this revision) had not filed any appeal or cross objection to the findings on Issues Nos.1 to 3, decided against him, therefore, he cannot be allowed to assail the findings on Issues Nos. 1 to 3, against him at the appellate stage. Mr.Riaz Ahmad Shaikh, learned counsel for the applicant has conceded that the three rulings cited by the learned Additional District Judge, support the view taken by learned Additional District Judge. However, he has submitted that there are several judgments to the contrary, wherein it has been held that learned Appellate Court has wide powers under order XLI rule 33 to make any order which ought to have been passed or made by the lower Court and the appellate party can exercise such power, notwithstanding, that the appeal, is as to the part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or cross-objection.
15. ' Both learned Advocates for the applicant and respondent cited several judgments for and against on the point, whether a respondent who has not filed the appeal against any issue decided against him and has failed to file appeal or cross objection can be allowed to assail/attack the part of decree/findings against him.
16. ' For the sake of brevity, I will refer few judgments of Honourable Supreme Court only: ' In the case of Khairati v. Alimuddin ' PLD 1973 SC 295, following points were raised in the review petition.
(i) That it was the duty of the Court under section 3 of the Limitation Act to consider the question of limitation whether it was raised or not by a party to a proceeding;
(ii) That under. Order XLI, rule 33 of the Code of Civil Procedure, the Court of Appeal has all the powers of the trial Court and it can pass any decree or order which ought to have been passed made; and
(ii) That furthermore, under Order XLV ruIe.22,of the Code of Civil Procedure, any respondent, though he may not have appealed from any part of the decree may support the decree even on any one of the grounds decided against him in Court below.
17. ' Humoodur Rehman, CJ held as follows:-- "It is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In the present case, the 'trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross-objection.
18. ' The nest contention of the learned counsel appearing in support of this review petition is that it is , in any event, the duty of the Court to consider the question of limitation. This is also correct to the extent it goes; but it does not mean that where a trial Court has given a finding on the question of limitation against the particular party, he can still, without filing an appeal or cross-objection, challenge that finding in the higher Court of Appeal.
19. ' The Appellate Court is certainly bound to consider whether the appeal is within time or not, but it is not called upon to consider whether the suit has been rightly held to be with in time, if no appeal or cross-objection is filed."
20. ' In the case of Karntal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53, a Bench of Honourable Supreme Court comprising four Judges considered the point in issue and held as follows: "Learned counsel appearing in support of this appeal strenuously assailed the 'findings of the trial Court on the third issue between the parties whereby it was held that respondents Nos.2 and 3 were only befiami purchaser in the first sale, dated 17-6-1957 and that Fateh Khan was the real owner of the whole property. However, we cannot allow the appellants to agitate this question at this stage, as the controversy between the parties has all along, except in the trial Court, remained confined to the question whether the appellants were bona fide purchaser for value of the property from respondents Nos.2 and 3 as ostensible owners and whether they are entitled to take protection of the beneficial provisions of section 41 of the Transfer of Property Act. Further no cross- objection seems to have been filed by the appellants to challenge the finding on this issue, in the appeal filed by Fateh Khan seeking to challenge the decree passed by the trial Court. The finding on this issue has, therefore attained finality and is not liable to be re-opened at this stage."
21. ' In the case of Mohammad Nawaz v. Mst. Ahmed Bibi,1995 SCM R 266, a Bench comprising three Judges of Honourable Supreme Court, Salim Akhtar, Saiduzzaman Siddiqui, Wali Mohammad Khan JJ. Held as under: "The learned First. Appellate Court availing of, the provision of Order 41, Rule 33, P.P.C. Has decided the appeal against the appellant not only on, the matter from which he felt aggrieved bat also on the portion of the decree passed in his favour. For ready reference the said provision is reproduced hereunder: "33. Power of Court of appeal.--- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or made such further or other decree or order as the case may require, and this 'power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or/any of the respondents or ,parties, although such respondents or parties may not have filed any appeal or objection.
22. ' Provided that the Appellate court shall not make any order u section 35-A, in pursuance of any objection of which the Court from whose , appeal is preferred has omitted( or refused to make such order.
23. ' The above provision came up for consideration before this Court in the case of Messeer S.M.
24. Yousaf and Bros v. Mirza Muhammad Mehdi Pooya PLD 1965 SC 15 and after considering the authorities cited at the Bar, the purpose underlying the above provision and its application to the various dispute were summarised as follows: ' -The terms employed to confer the power are of the widest amplitude to enable an Appellate Court to pass decree according to the justice of the case. The language used is affirmative, and the rule is further strengthened by non obstante clauses, giving the cleat- 'impression that the intention is beneficial, so that no legal right should be denied which the Appellate Court consider should be allowed within the framework of the suit. The non obstante clauses are particularly significant The fact that the appeal is as to a part only or the decree will not, by itself, restrain the Appellate Court's power. Here the whole the decrees was before the Appellate Court, but the other non obstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule itself have filed an Appeal objection.
25. ' Therefore, the mere act of the plaintiff not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah. Kirmani Would not by itself be sufficient to justify refusal to exercise the power under the rule. The principle as stated in the judgment of the High Court, namely, that in the absence of a counter-appeal being filed a decree against another defendant cannot be "given not only constitutes a fetter upon the extremely wide power given to the Appellate Court by the Code, but may also the thought to be in direct contravention of a clear provision in the rule.
26. ' We have accordingly referred to the earlier judgment of the same Court in the earlier case of Bakhsh Illahi and sons to examine the arguments there set out. Four precedent judgments ate cited. From three of them, which are mentioned without reference to their particular facts, general propositions are extracted to the effect that the power given by the rule is widely expressed and must be applied with discretion is required to adjust the right of the. Parties in .Accordance with justice, equity and good conscience or where the failure to exercise the power would lead to impossible, contradictory and unworkable orders. These particular considerations undoubtedly are circumstances which would justify the exercise of the direction conferred by the rule, but it is -night that we should say that if these propositions are to be understood as limiting the exercise of the power within the circumstances specified, they would be in exercise of the power within the circumstances specified, they would be in excess of the power given to the Courts to interpret and apply a rule expressed in such wide terms as is rule 33. The rule confers unfettered discretion, and anything expressed in negative or restrictive terms, effecting its application, must be accepted as applying only to the particular facts of the case to which the rule is being applied by interpretation.
27. Such an interpretation cannot be extended to all or any other cases, for in each one, the application of the rule must be made beneficially and in accordance with the relevant facts. The single case cited by the High Court with reference to its facts is that of Muhammad Khaleef Sherazi (AIR 1926 PC 34), which clearly shows points of difference from the present case. The facts were of a much more complicated character then they are in this case and in the result the Privy Council declined to interfere on behalf of the plaintiff to declare the liability of one of the defendants against whom his case had been expresly dismissed by the trial Court, and he had not appeal against that decision, The Judicial Committee holding that in effect, the plaintiff was moving an appeal direct to the Privy Council from the decree of the trial Judge which is not allowed under the Civil Procedure Code opined further that Order XLI, rule 33,P.P.C. Was not intended to apply to such an appeal."
28. ' In this case of Anath Nath Biswas v. Dwarka Nath Chakarvarti (AIR 1939 Privy Council 86), interpreting Order 41, Rule 33 and Rule 22 the following Observations were made: "In a suit brought by them the co-sharers alleged that in respect of the revenue sale their co- sharer had been guilty of fraud or improper conduct to the prejudice of his co-owners in the estate, and contended that, by reason thereof the purchase was one in which they could claim to share by recovering their former interest upon payment of proportion of the purchase money. The trial Judge accepted this contention and gave the plaintiff a decree directing the co-sharer to convey to them their former share on receipt of a proportionate part of purchase price. On appeal the decree holders respondents without filing any cross-objection to the decree of the trial Court claimed that the revenue sale should be set aside for want of jurisdiction or irregularity.
29. ' Held that the claim to relief was founded upon different grounds from those upon which the trial Court's decree proceeded, and upon principles different from those which underlay the relief given by the decree. The case came clearly within the condition imposed by the concluding words of sub-rule (i) of rule 22, provided he has filed such objections in the Appellate Court, etc, and rule 33 could not rightly be used in such a case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the Court below."
30. ' The careful deciphering of the provision of Order XLI, Rule 3, C.P.C. Makes it amply clear that the Appellate Court has been invested with wide powers to do complete justice between the parties and may pass decree or order in favour or against any party notwithstanding the fact that no appeal has been filed against portion of the judgment passed in favour of the appellant for the respondent. The words "although such respondents or parties may not have filed any appeal or objection." Are very much significant for the disposal of the controversy in hand. Rule 22 of Order XLI enjoins that any respondent, though he may not have appealed from any part of the decree may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Any party aggrieved from any judgment or decree has a remedy to prefer appeal against the judgment or decree to the Appellate Court having jurisdiction in the matter and if he feels dissatisfied with a part of the decree he can either straightaway go in appeal or wait till the other party approaches the Appellate Court in which case he was right to defend the decree on any ground or file cross-objection which has the force of an appeal and the time allowed is 30 days from the service notice of appeal upon him. If the party does not go in appeal or file cross-objection, the decree passed against him becomes final. However, the Appellate Court is invested with wide powers under Order XLI, rule 33 to pass any order but, by no stretch of imagination, it can be interpreted to mean that even if the appeal filed by the party has been dismissed, the Appellate. Court in the exercise of its power under Rule 33, Order XLI can undo his earlier judgment and set aside the decree passed against the said party in the appeal filed by the opposite side regarding the part of the decree of which he feels aggrieved and deprive him even of that part of the decree granted in his favour against which the appeal filed by his adversary already stands dismissed. Another unsurmountable difficulty -also arise in such an eventuality as the same Appellate Court would be passing two contradictory and inconsistent judgments/decrees, one against the respondents dismissing their appeal against the portion of the decree for specific performance and the other passing a decree in their favour by setting aside the decree for specific performance of the decree in the appeal filed by the opposite side against them, which has to be avoided at all costs. The learned High Court in the impugned judgment has already dissented from the view taken by the First Appellate Court under Order XLI, Rule 33, C.P.C.
31. And concurring with the High Court, we hold that the First Appellate Court in the presence of the order of dismissal of appeal resulting in the maintaining of the decree for specific performance could not legally reverse the finding of the trial Court by setting aside the decree for specific performance and that too, in the appeal filed by the appellant in which the same was not subjudice."
32. ' In the case of Province of Punjab through Collector Bahawalpur, District Bahawalpur and others v.
33. Abdul Majeed and others, 1997 SCM R 1692. Another Bench of Honourable 'Supreme Court comprising three Judges (Saiduzzamin Siddiqui, Mohammad Bashir Khan Jahangiri, Munawar Ahmed Mirza JJ. Considered the point, whether a relief can be granted by the Appellate Court to the persons, who have neither preferred appeal against the judgement and decree of the original Court nor have filed cross objection. Speaking for the Bench, his Lordship Saiduzzaman Siddiqui, J.
34. (as he then was) after examining the provision contained in sections 107, 151 and Order 41 Rule 33 C.P.C. And after making reference to the judgment in the case of (1) WAPDA v. Khanzada M. Abdul Haq Khatak, PLD 1990 SC 359 , (2) Ghulam Hussain K. Faiz,- PLD 1991 SC 218, (3) Central Government of Pakistan v Suleman Khan, PLD 1992 SC 590, (4) S.M Yousuf and Brothers v. Mohammad Mehdi Pooya PLD 1965 SC 15, held as follows: "8. From the proceeding discussion, it follows that the power conferred on the Appellate Court under Order 41. Rule 33 C.P.C. Is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, not withstanding the fact that such party failed to prefer an appeal or submit any cross-objection.
35. ' However, in granting relief in such ,.'cases the Appellate Court will be guided by principle of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory unworkable or ' impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order 41, Rule 33 C.P.C. To grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross-objection in the appeal. In the .Case before us, the learned Judges of the High Court having reached the conclusion that the price of land acquired should have been assessed at Rs,4,666 per Marla, were of the opinion that in the circumstances of the case it would be unfair if the benefit of such assessm ent of market value of the land is not extended to those landowners also who failed to file the appeals or cross-objections. Although, it was not so expressly stated in the impugned judgment by the learned Judges but from the trend of reasoning, it is clear to us that the learned Judges were of the: view that it would lead to contradiction in terms, if some of ' the landowners in the same vicinity are awarded compensation at higher rate while others are, paid at a much lower rate of assessm ent. The learned Judges, therefore, took the view that the case was fit for exercise of power by them under Order 41, Rule 33,C.P.C. By awarding compensation at a uniform rate even to those respondents who had either omitted to file the appeals against the judgment of referee Court or had failed to prefer cross-objections in the appeals filed by the appellants. The above approach by the learned Judges for exercise of their jurisdiction under Order 41, Rule 33 C.P.C. Cannot be treated as unjustified or irrelevant so as to call for interference by this Court. We, therefore, find no force in the contention of the learned counsel for the appellants that the High Court had no jurisdiction to extend the benefit of higher assessment of compensation for acquired land to land owners/respondents who had failed to file appeals or cross-objection in the appeals filed the applicants."
36. ' In the case of Nazir Ahmed v. Abdul Sattar 1999 SCM R 342, the Honourable Supreme Court reiterated the dictam that Order 41 rule 33 C.P.C. Was of widest amplitude to enable the competent Court to pass decree according to justice of the case and adjudge claims rights, and liabilities of the parties to the litigation in accordance with ,equity, justice and good conscience and fair-play.
37. ' In the light of observations of the Honourable Supreme Court in the case of Province of Punjab v.
38. Col Abdul Majid 1997 SCMR 692, that the power conferred on the Appellate Couri under Order 41, rule 33 C.P.C. Is of the widest amplitude and in exercise of its power, the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer or file or submit any appeal or cross objection, however, in granting relief in such cases the Appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree and when the. Appellate Court reaches a conclusion in a case that by withholding the relief to non- appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result for it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order 41, Rule 33 C.P.C. To grant appropriate relief to a non-appealing respondent or to a' respondent who omitted to file cross-objection in the appeal, I asked the learned counsel for the applicant to show the reason for exercise or jurisdiction by the learned First Appellate Court, under Order XLI Rule 33 in the absence of appeal/cross-objection.
39. ' Learned counsel for the applicant contended that the suit for specific performance of contract filed by the respondent Ghos Mohammad was based on sale Agreement, allegedly executed by the applicant, and the execution thereof was denied by the applicant. The respondent in order to prove execution of Sale Agreement Exh.100, examined himself, P.W. Haji Khan scribe and attesting witness Abdul Rehman. Learned Civil Judge on the basis of evidence of these witnesses held that the Sale Agreement was executed by the defendant/applicant. Mr. Riaz Ahmed Shaikh, Learned counsel for the applicant contended that under Article 79 of Qanune-Shahadat Order, 1984, if a document is required by law to be attested, it shall not be used as evidence untill two attesting witnesses at least have been called for the purpose of proving its execution, if there be attesting witnesses living and subject to the process of the Court and capable of giving evidence. The learned counsel strenuously argued that the respondent/plaintiff examined himself, and one attesting witness without showing that the second attesting witness was not alive and was not subject to process of the Court and not capable of giving evidence, therefore, the learned Civil Judge misdirected in holding that the Sale Agreement was proved to have been executed by the applicant. Learned counsel submitted that under Article 79 of Qanun-eShahadat Order, 1984, the Sale Agreement could not be used in evidence and, therefore, the learned First Appellate Court ought to have considered the contention that the learned Civil Judge has committed an error in law by using the Sale Agreement in evidence and should have reversed the finding.
40. ' I have carefully considered the contentions of Mr. Riaz Shaikh, learned counsel for the applicant. At the first sight, the contention raised by him appears to be impressive and attractive but on careful examination of the facts and circumstances of the case, it looses all its apparent vitality and strength. The Courts are required to apply the particular provision of law in the light of facts and circumstances of each case. The abstract principle of law are not to be applied .By ignoring the facts and circumstances of a case under consideration. A perusal of the record shows that the sale Agreement was executed on 10-9-1969, the suit was filed in year 1973 (SC Suit No,21 of 1973), which was subsequently renumbered as S.C. Suit No,3 of 1974 and was decided by learned Joint Civil Judge, Mirpurkhas on 27-11-1979. The proposition of law, that the Court is required to apply the law as prevailing at the time of decision, requires no emphasis. In the year 1997, when the learned Joint Civil Judge, Mirpurkhas decided the suit and held that the respondent/plaintiff established execution of the Sile Agreement by examining himself, and one attesting witness and used the document in evidence, the Qanun-e-Shahadat Order, 1984, was not promulgated. At that time the Evidence Act 1872, was in force and prevailing. Section 68 of Evidence Act 1872 , was corresponding provision of Article 79 of Qanun-e-Shahadat Order, 1984, and under the said section only one attesting witness was required to be called for the purpose of proving the execution and attestation of document. Thus the respondent/plaintiff by calling one attesting witness and examining him had fulfilled the requirement of law, prevailing at the relevant time. Learned Civil Judge also decided issue in accordance with law, as prevailing in the year 1979, and therefore, the contention of learned counsel for the applicant that the learned Civil Judge committed error of law, is without substance. Since the point on which findings of the learned Civil Judge on Issues Nos 1 to 3 against the applicant/defendant was sought to be reversed by the learned First Appellate Court, was misconceived in the facts and circumstances of the case, therefore, I am of the opinion that, notwithstanding the fact that, in view of the several judgments of the Honourable Supreme Court cited earlier, learned First Appellate Court could allow the respondent (the applicant herein), who had not filed cross-appeal/objection to assail the findings against him in the interest of justice and to adjudge claims, rights and liabilities of the parties to the litigation in accordance with equity, justice, good conscience and fair play, the refusal of learned First Appellate Court to entertain the objection has not caused any miscarriage of justice. As already shown above, the reversal of the finding on issue Nos.1 to .3 against the applicant/defendant was sought on the basis of provision of law, in Article 79 of Qanun-e-Shahadat Order, 1984 which was not on the Statute Book in the year 1979 and the learned Civil Judge had decided the suit, when the said plea was not available to the applicant/defendant and the 'contention was totally misconceived, the findings of learned Civil Judge on Issues Nos. 1 to 3 could not be reversed.
41. For the foregoing reasons, I am of the considered opinion that the learned counsel for the applicant has not been able to establish that any injustice has been done to the applicant or any mandatory provision of law was violated by the learned Civil Judge, which required reversal by the learned First Appellate Court, therefore, there are no circumstances warranting interference by this Court in exercise of Revisional Jurisdiction under section 115, C.P.C.
42. ' For the forgoing reasons, the revision application stands dismissed with no order as to costs.