2021 PLP 1644 (CLC)

ADNAN IQBAL CHAUDHRY, J.

This revision application under section 115, C.P.C. is against concurrent findings of fact whereby suit filed by the Respondents Nos.1 to 5 for cancellation of the registered sale deed of the Applicants, was decreed. Learned counsel for the Applicants was queried why a second appeal under section 100, C.P.C. was not preferred when the same was not hit by section 102, C.P.C. Apparently, after section 102, C.P.C. was amended in the year 2004, the Provincial Government of Sindh has not fixed a value for cases in which a second appeal would be barred. That much was also stated by the learned AAG Sindh in another revision before this Court. Learned counsel responded by submitting that both the Courts below misread the evidence in believing unregistered documents produced by the Respondents 1 to 5 over the registered document relied upon by the Applicants; and that such question of misreading of evidence can only be examined in a revision under section 115, C.P.C. and not in a second appeal under section 100, C.P.C. To support said argument, learned counsel relies on Abdul Rashid v. Bashiran (1996 SCMR 808); Atiq-ur-Rehman v. Muhammad Amin (PLD 2006 SC 309); Muhammad Akhtar v. Mst. Manna (2001 SCMR 1700) and Mir Daud Khan v. Mahrullah (PLD 2001 SC 67). However, none of those cases advance the argument of learned counsel. Whereas, the case of Alamdar Hussain v. Nazir Hussain (2004 SCMR 595) categorically holds that the question of misreading and/or non-reading of evidence can be examined in a second appeal under section 100, C.P.C. In fact, as held in Bashir Ahmed v. Taja Begum (PLD 2010 SC 906), the scope of revisional jurisdiction is even more restricted than the appellate jurisdiction under section 100, C.P.C. Section 115(1), C.P.C. stipulates that "The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto .". It was clarified in Municipal Committee Bahawalpur v. Aziz Elahi (PLD 1979 SC 506) and Sheikh Faqir Muhammad v. Muhammad Din (1993 SCMR 1955) that the remedy of a revision application before the High Court under section 115, C.P.C. will not be available if a second appeal under section 100, C.P.C. is available. Thus, the Applicants ought to have filed a second appeal under section 100, C.P.C. instead of a revision application under section 115, C.P.C. However, since a second appeal was not time-barred when the revision application was filed, given the power of this Court to convert one proceeding to another as discussed in the case of Muhammad Akram v. DCO Rahim Yar Khan (2017 SCMR 56), I hereby convert this revision to a second appeal and permit the Appellants to file an amended memo. of appeal in line with Order XLI, Rules 1 and 2, C.P.C. Subject to compliance of office objections and the filing of an amended memo. of appeal as aforesaid, issue notice to the Respondents on the main case and C.M.A. No.509/2020 to consider the point of mis-reading of evidence raised above by the learned counsel. SA/F-34/Sindh Order accordingly.