2003 PLP 1246 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

Petitioners seek leave to appeal against the judgment, dated 1st November, 1999, passed by Lahore High Court, Lahore, whereby civil revisions filed by the respondents have been allowed. As in the captioned petitions a common judgment of the High Court has been assailed, therefore, we intend to dispose them of by this common judgment.

2. Succinctly stating the facts of the case, as put up before the High Court, are that the dispute between the parties relates to land measuring 27-Kanals and 17 Marlas, situated in Mauza Chawinda, Tehsil Pasrur, District Sialkot. The proprietary rights of this piece of land was conferred upon one Maskin Ali vide Mutation No.685, sanctioned on 26th December, 1979, alienated the entire property in favour of the respondents and Mutation No. 688 to the above effect was sanctioned on 24th January 1980.

3. It is important to note that petitioners filed a suit for permanent injunction seeking restraint against above said Maskin Ali from transferring this property as according to there Maskin Ali had entered into an agreement of sale with them earlier. The suit was conceded by Maskin Ali on 8th July, 1979, as a result whereof a decree for permanent injunction restraining him from alienating the land was passed on 2nd October, 1979. Thereafter, petitioners filed another suit for declaration to the effect that they had already paid the total consideration amount to Maskin Ali and thus have become owners of the disputed land. Again the suit was conceded by Maskin Ali on 9th February, 1980 and a decree was accordingly passed. Subsequently, on 10th February, 1980 petitioners filed another suit for declaration now also impleading the respondents as party alongwith Maskin Ali. They solicited a decree for declaration of ownership in possession of the suit property. The suit was contested by the respondents. Besides, one of the respondents, namely Muhammad Rafiq, who is the co-purchaser of the respondents in the sale, dated 30th December, 1979 from Maskin Ali, filed an application under section 12(2), C.P.C. challenging the decree in favour of petitioners, dated 9th February, 1980, on the ground of fraud and mis representation. Both these matters were consolidated and the learned Civil Judge, seized, of the matter, after framing necessary issues and recording of evidence, decreed the suit of petitioners and dismissed the application under section 12(2), C.P.C. On appeal the matters were remanded to the trial Court for decision afresh. Post remand, the suit of petitioners was dismissed, whereas the application under section 12(2) , filed by one of the respondents namely Muhammad Rafiq was accepted on 16th March, 1993. Feeling dissatisfied, petitioners appealed before Appellate Court, which has been allowed on 24th May, 1997. Being aggrieved from the judgment of the Appellate Court, respondents invoked the jurisdiction of the learned High Court by filing civil revisions, which have been allowed by means of impugned judgment. As such instant petitions for leave to appeal have been filed.

4. Learned counsel argued that Revision Petitions filed by the respondents being Nos.27, 28 and 54 of 1998 were filed beyond the period of limitation but. the High Court without making proper calculation treated them within time. We have gone through the relevant paras. of the impugned judgment dealing with the question whether the revisions are within time or otherwise. The findings have been recorded after making calculation in respect of the period spent in obtaining certified copies etc. and all the three revisions were treated to be within time. As the findings of the High Court are based on appreciation of relevant facts, relating to filing of application and getting its certified copies, therefore, we are of the opinion that the High Court was right in holding that the revision petitions have been filed within time, therefore, no interference is called for.

5. Learned counsel then contended that revisions were field by Allah Rakha on behalf of respondents, but without proper authorization, therefore, revisions were not maintainable. In this behalf it is to be noted that such objection was raised by the petitioners before the High Court but it was overruled for the reasons namely that though the power of attorney was executed in his favour at the time when the matter was pending in appeal but it pertains to the present litigation between the parties which culminated into revisional judgment of the High Court. It may also be noted that as far as the respondents are concerned, they have never denied that so far as Allah Rakha is concerned, he was not duly authorized to participate in the proceedings, therefore, legally it would be presumed that on the basis of. said power of attorney, which was executed in his favour, mentioning therein that he was authorized to appear on behalf of respondents up to the Court of District Judge, can also be considered as a document on the basis of which he was authorized to file revisions, arising out of the litigation between the parties.

6. Similarly, it was contended by the learned counsel that as far as Civil Revision No.54 of 1998 is concerned, it was not filed according to the procedure because in this revision all the seven respondents who were separate parties in two suits being five and two plaintiffs respectively, have been jointly impleaded, therefore, revision was not competent. In our opinion impleadment of seven persons in one revision, who were already party in both the suits, has not caused prejudice to petitioners, therefore, no interference, if at all, is called for in the judgment impugned, on this score.

7. Learned counsel further argued that learned revisional Court has disturbed the finding of the trial Court on the question of facts. Suffice to observe that if the revisional Court exercising powers under section 115, C.P.C., on the basis of available record, formed the opinion that findings of the trial Court are based on non-reading of evidence then it has jurisdiction to make interference in the findings recorded by the subordinate Courts. Reference in this behalf can be made to the case of Muhammad Sain v. Muhammad Din (1996 SCMR 1918), wherein it has been held that "revisional Court generally could not interfere with finding of fact recorded by Appellate Court unless same was based on misreading of evidence or omission to consider material evidence or when such finding was contrary to evidence". Since in the case in hand learned High Court has reversed the findings for the reason that there was misreading of evidence by the Additional District Judge, therefore, the impugned judgment being in consonance with the law laid down by this Court in the judgment referred to hereinabove, admits no interference by this Court, as such, contention of the learned counsel in this behalf is accordingly repelled. No other point has been argued by the learned counsel. Thus, for the foregoing reasons, petitions are dismissed and leave declined. M.B.A./M-847/S Petitions dismissed.