1982 PLP 248 (SCMR)

M. Qasim Imam, Advocate‑on‑Record for Respondent No.

1. Date of hearing: 8th June 1980. ANWARUL HAQ, C. J.‑This petition seeks a review of the order of this Court dated the 16th of December, 1972, whereby Civil Petition for Special Leave to Appeal bearing No. 20‑P of 1972, was dismissed. The dispute relates to the alienation of certain agricultural property by Haji Mian Muhammad in favour of his son Haji Fazal Illahi. After examin ing the evidence brought on the record by the parties, the learned Senior Civil Judge, Peshawar, had come to the conclusion that the vendor was of sound disposing mind at the time of making the sale, that he had not been subjected to any undue influence, and that full consideration had been paid. The trial Court also held that in view of explanation IV of section 11 of the Civil Procedure Code the defendants, that is, the present petitioners were debarred from raising these pleas for the reason that they had previously brought a suit in respect of this very property, but had not raised the pleas on which they were resisting the present suit. These findings of the trial Court were upheld by a Division Bench of the Peshawar High Court, and the petitioners were refused leave to appeal by the order under review. It is submitted by Mr. Muhammad Naazar Khan. that this Court was in error in observing that the question regarding the exercise of undue influence was a question of fact, as the real question was as to the inference to be drawn from the evidence, and this was a question of law falling within section 16(2) of the Contract Act ; and that the trial Court as well as the High Court were in error in holding that the defendants were debarred from raising these pleas under section 11(4) of the Civil Procedure Code. There is no merit in these submissions. As observed in Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38), an erroneous finding of fact arrived at after on appraisal of evidence does not amount to an error of law unless there is an error in the procedure provided by law, which may possibly have produced an error of defect in the decision of the case on the merits. Now, in the present case, the two Courts below have recorded a concurrent finding of fact on the question of the soundness of the mind of the vendor, and the absent of undue influence over him, and these findings are fully sustainable on the record. It was rightly observed in the order under review that this was pre‑eminently a question of fact and could not justify interference by this. Court. The second contention was not raised at the time of the bearing of the petition, and cannot, therefore, furnish a ground for review. As a result, the petition fails and is hereby dismissed. Petition dismissed.