P L D 2000 Quetta 8 (PLP)

Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Dastoor‑ul‑Amal Diwani Riyasat Kalat, 1952‑‑‑Revision‑‑ Concurrent findings of fact by both the Courts below‑‑‑Exercise of revisional jurisdiction by High Court‑‑‑Scope‑‑‑Court of Qazi under provisions of Dastoor‑ul‑Amal Diwani Riayasat Kalat, 1952, was bound to decide the matter in accordance with Shariat‑‑‑Both the Courts below had analysed the evidence on record and High Court could not substitute the conclusion which was concurrently and reasonably drawn by the Courts below by proper appreciation of the evidence‑‑‑Where no error of law or defect in procedure had been committed in coming to a finding of fact, High Court could not substitute such finding with its own merely because a different finding could be given‑‑‑Petitioners failed to point out any jurisdictional defect in the judgments and decrees of both the Courts below or any irregularity or illegality warranting interference in such matter in exercise of revisional jurisdiction‑‑‑Revision being without merit was dismissed accordingly. 1997 SCMR 1139 and 1993 MLD 643 ref, This civil revision petition under section 115, C.P.C. is directed against the judgment and decree of the learned Majlis‑e‑Shoora, Makran Division at Turbat dated 31‑8‑1998 whereby, the appeal filed against the judgment and decree dated 30‑4‑1998 passed by the learned Qazi, Pasni, was dismissed.

2. Briefly stated the facts of the case are that the respondent Gul Muhammad filed a suit in the Court of Qazi, Pasni, on 2‑6‑1997 against the petitioners in respect of the property, the description of which is given in the plaint. The suit was resisted by the petitioners by filing written statement on 17th June, 1997.

3. Out of the pleadings of the parties the learned Qazi on 23rd June, 1997 framed the following issues:‑‑ It is stated that an amended suit was filed on 13‑12‑1997 and written statement by the petitioners was filed on 28‑2‑1998.

4. In support of his case respondent/plaintiff produced six witnesses and also got recorded his statement on oath. The petitioners produced three witnesses and Shahdad also got recorded his statement. The learned Qazi Pasni on the assessment of evidence brought on record decreed the suit in favour of the plaintiff/respondent on 30‑4‑1998. Aggrieved by the above judgment and decree. the petitioners/appellants preferred an appeal before the learned Majlis‑e‑Shoora, Makran Division at Turbat.

5. The learned Majlis‑e‑Shoora after hearing the arguments of learned counsel for the parties and examining the record came to the conclusions that the judgment of the lower Court was in accordance with law and according to Shariat. The relevant portion of the conclusion drawn by the Majlis‑e‑Shoora is reproduced below for the sake of facility:‑‑ The judgment of dismissal of the appeal of the petitioners is subject‑matter of the present civil revision which has been filed under section 115, C.P.C.

7. The main contentions put forth on behalf of the petitioners are that the learned Qazi did not comply with the provisions of Order 20, Rule 5, C.P.C. The trial Court had given permission for amendment without adopting the proper procedure, the Courts below have not appreciated the evidence produced by the petitioners. The learned Majlis‑e‑Shoora did not comply with the provisions of Order 41, Rule 31, C.P.C. The learned counsel has also contended that in the garb of illegal claim the plaintiff/respondent wanted to illegally occupy the land belonging to the petitioners. Learned counsel has submitted that it was a fit case for remand.

8. On the other hand learned counsel for the respondent has supported both the judgments and submitted that no objection was raised in the written statement regarding amended plaint and moreover, the nature of the suit was not changed. According to learned counsel amendment cart be made at any stage. In the instant case the statements of the parties were yet to be recorded and had the opportunity of raising objection but no objection was raised. He has further stated that since the nature of suit ways not changed, therefore, there was no need for framing of fresh issues nor any application was moved to the trial Court for framing of issue. Learned counsel has also contended that neither in the memo. of appeal veracity of evidence has been objected nor in the petition it has been stated that there is misreading or non‑reading of material evidence. Learned counsel has also submitted that learned Qazi has discussed each issue and similarly Majlis‑e‑Shoora have also discussed the issue and upheld the judgment and decree of the lower Court, therefore, there is nothing which can indicate that the Majlis‑e‑Shoora did not comply with the Order 41, Rule

31. It has also been contended that the documents filed by the plaintiff/respondent No. l exhibited and considered by the trial Court were not annexed with the revision petition. It may be stated that according to Order 6, Rule 17, the‑Court at any stage of proceedings can allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. .

10. The Courts below have analysed the evidence on record and this l Court cannot substitute the conclusions which were concurrently and reasonably drawn by the learned Courts below by proper appreciation of the evidence. If no error of law or defect in procedure had been committed in coming to a finding of fact, the High Court cannot substitute such a finding merely‑because a different finding could be given.

11. The observations made by the Hon'ble Supreme Court in the authority reported in 1997 SCMR 1139 are noteworthy and the relevant portion of which is reproduced below for the sake of facility:‑ "Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent findings of fact by the High Court in exercise of its revisional jurisdiction under section

115. C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its bower under section

115. C P C cannot upset a finding of fact, however, erroneous it may be on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record. "

12. According to the provisions of Dastoor‑ul‑Amal Dewam Riasat Kalat, 1952 the Court of Qazi is bound to decide the matter in accordance with Shariat. The learned counsel has not been able to point out any jurisdictional defect in the impugned judgment and decree of the Courts below or any irregularity or illegality warranting interference in this matter le in the exercise of revisional jurisdiction.

13. For what has been stated above, I do not find any merit in this revision petition and the same is accordingly dismissed but with no order as to costs. Q.M.H./M.A.K./787/Q Revision dismissed.