1984 PLP 364 (CLC)

(a) Civil Procedure `Code (V of 1908)‑ ‑‑ O. XX, r. 5‑Plaintiff categorically denying giving any consent for sanction of Khal‑‑Such statement not rebutted‑Mere fact that order of Canal Authorities stating that order regarding sanctioning amendment of Khal was made with consent of petitioner, held, would not lead to conclusion that consent was so given‑Appellate Court while re‑evaluating evidence to take into consideration whole of evidence on record for determining question.‑[Judgment]. (b) Civil Procedure Code (V of 1908)‑ ‑‑ S. 115 & O. VI‑‑Finding on question given on basis of impugned order and in disregard of statement of plaintiff‑Such finding based on misreading of evidence, held, cannot be regarded as sacrosanct and liable to be set aside‑Case remanded to Appellate Court for disposal afresh on merits after reevaluating entire evidence.‑[Evidence]. (c) Civil Procedure Code (V of 1908)‑ ‑‑ S. 96‑Duty of appellate Court‑Court should take into consideration whole of evidence on record in order to come to a finding.‑[Evidence]. JUDGMENT This revision petition is directed .against the judgment and decree, dated 21st September, 1981 of the learned Additional District Judge, Faisalabad whereby he dismissed the appeal of the petitioners against the judgment and decree, dated 19th May, 1980 of the trial Court.

2. The dispute in this case relates to the sanctioning of a Khal situated at Chak No. 145‑RB.

3. The sole grievance of the petitioners is that the impugned judgment of the learned Additional District Judge is based on erroneous assumption of fact that the orders of the Canal authorities, impugned in the suit were passed with the consent of the petitioners.

4. Learned counsel for the respondents submits that this objection was never taken by the petitioners either in the plaint or in the grounds of appeal nor any issue was struck by the trial Court as to whether or not the consent was given by the petitioners, and therefore, they are debarred to raise this objection in revision petition.

5. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the record with their assistance.

6. The plaintiff as P.W. 1 categorically stated that he gave no consent for sanctioning of the Khal before the Canal authorities. There was no rebuttal to this statement. Neither the trial Court nor the first lower appellate Court considered this material aspect of the case. The mere fact that it is stated in the orders of the Canal authorities, which have been impugned in the suit, that the order regarding sanctioning/ amendment of Khal was trade with the consent of the petitioners would not lead to the conclusion that the consent was so given. The lower appellate Court while re‑evaluating the evidence should have taken into consideration the whole of the evidence on record in determining as to whether or not any consent was given by the plaintiff. Here the finding on this question was given on the basis of the orders impugned in the suit and in disregard of the statement of plaintiff who appeared as P.W.

1. This finding being based on misreading of evidence cannot be regarded as sacrosant and is liable to be set aside notwithstanding the fact that this question was not specifically raised in the pleadings.

7. In view of the above, the impugned judgment, dated gist September, 1981 of the learned Additional District Judge is set aside and the case is remanded to him for disposal afresh on merits after re‑evaluating the entire evidence. The parties are directed to appear before the learned District Judge, Faisalabad, on 7th November, 1983 for further proceedings. To this extent the revision petition is accepted but there shall be no order as to costs. M. A. K. Appeal accepted.