1999 PLP 1782 (SCMR)

MAMOON KAZI, J.

This appeal has arisen from the judgment of a learned Single Judge of the Lahore High Court (Multan Bench) Multan, date 20-11-1997, allowing the revision petition filed by the respondent with costs and setting aside the judgment, passed by the appellate Court.

2. Brief facts of the case are that, respondent, Sabir Ali, filed a suit on 1-3-1981 in the Court of Civil Judge, Multan, to pre-empt sale of land measuring 220 Karials situated in Mouza Jedha Ram, Tehsil, Lodhran, District Multan, which had been sold to appellant, Muhammad Mansha, and his brothers, Muhammad Insha and Muhammad Iqbal, and sister, Mst. Sabiran. The respondent had claimed superior right as being owner in the estate, co-sharer in the Khata and having a common source of irrigation. It had been claimed in the plaint that, the sale was fictitious to scare away the pre-emptors and an amount of Rs.2,00,000 had been paid which was then the market value of the suit land.

3. The said suit was contested by the appellants, vide written statement dated. 1,3-6-1983. It was contended by the appellants that, the suit had been filed on the instigation of someone else and the appellants had made improvements in the suit land by spending an amount of Rs.45,000 thereon. Apart from this, certain legal objections were also raised in the written statement.

4. On the pleadings of the parties, the trial Court framed as many as nine issues in the case. Thereafter, evidence was recorded and the suit was decreed in favour of the respondent by the learned Civil Judge, Multan, vide judgment dated 20-7-'1985. The appellants filed appeal which was accepted by the learned Additional District Judge, Multan, vide judgment dated 4-10-1987 as guardian ad litern had not been appointed for the successors-in-interest of Muhammad Iqbal, one of the defendants in the case, and the case was remanded to the trial Court for a fresh disposal. Thereafter, the trial Court framed additional issues but the plaintiffs suit was dismissed, vide judgment dated 25-4-1995. The respondent filed appeal which was heard by the learned Additional District Judge, Multan, but the appeal was also dismissed, vide judgment dated 22-10-1995. The respondent then filed revision before the Lahore High Court. The appellants filed cross-object ions to challenge the findings of the Courts below, which were against them, but the same objections were not entertained on a preliminary objection that, no provision existed in the Code of Civil Procedure for filing such objections in a revision petition. The revision was then allowed by the High Court, as pointed out earlier, and decree was granted in, favour of the respondent in consideration for an amount of Rs.5,00,000 in respect of the suit property.

5. The impugned judgment indicates that, the learned Judge in the High Court was not impressed with the findings reached by the learned Courts below on issues Nos.6 and 7 framed in the suit. Which are as follows:-- "(6) Whether the suit is benami? If so its effect? (7) Whether the, plaintiff has superior right of pre-emption qua the defendants?"

6. Mr. Gul Zarin Kiyani, learned counsel for the appellants has firstly contended that, the learned Judge in the High Court was clearly in error while disregarding the cross-objections filed on behalf of the appellants which has prejudiced the case of the appellants as material questions raised by the appellant is in, the said objections have been overlooked. According to the learned counsel, an objection had been raised on behalf of the appellants in regard to maintainability of the suit before the learned Civil Judge as the respondent had earlier been permitted by the learned Judge to withdraw from suit with permission to file a fresh suit. The same, according to the learned counsel, was not permissible under Order XXIII, Rule 1(2), C.P.C., which provides as follows:--

1. Withdrawal of suit for abandonment of part of claim,--(1) At any time after institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied:

(a) that a suit must fail by reason of some formal defect, (b) that there are other sufficient grounds for allowing the plaintiff to institute fresh suit for the subject-matter of a suit or part of claim, it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit, in respect of the , subject-matter of such Suit or such part of claim."

7. No doubt, as is indicated by sub-rule (2) in Order XXIII, C.P.C., the Court may grant permission to the plaintiff to withdraw from a suit with liberty to institute a fresh suit but, as is further indicated by the said sub-rules, such permission may be granted if the Court is satisfied that (1) the suit would fail by reason of some formal defect or (2) if there are other sufficient grounds for allowing the plaintiff to institute fresh suit for the subject-matter of the suit. According to Mr. Khan the words "other sufficient grounds" are to be read as ejusdem, generjs with the first ground. The main objection of Mr. Kiyani however, has been that, unless the Court is, satisfied as. to the existence of sufficient reasons as referred to in the said sub-rule, permission cannot be granted to plaintiff to institute a fresh suit, Nothing cab be spelt 'out from the order passed by the learned trial. Court in this regard to indicate, whether the Court had satisfied itself as to the existence of sufficient grounds to permit institution of a fresh suit by the respondent. Learned counsel has further pointed out that, the impugned order was, passed by the learned Civil. Judge, before service of summonses on the appellants, therefore, the objection had been validly raised by the appellants. Therefore, the learned Courts below were in clear error in overlooking the said objections.

8. The judgment of the learned trial Court indicates that, such objection had been raised by the appellants in their written statement and issue No.9-A was framed in this regard, however, the learned trial Court was not impressed by the objection as it had been held in Hriday Nath Roy v. Ramchandra Barria Sarma (AIR 1921 Cal. 34) that: "The Court trying the subsequent suit is not competent to enter into the question, whether Court which granted the plaintiff permission to withdraw the first suit with liberty to bring a fresh suit had properly made such order."

9. Mr. Gul Zarin Kiyani while extensively quoting from the Indian jurisdiction had very candidly conceded that the view taken in all such cases on the point has been more or less the same, but according to him, the case of the appellants is distinguishable as permission to file a fresh suit had been granted to the respondent without notice to the appellants. In Mst. Fatima v. Mst Sardaran (PLD 1956 (W.P) Lah. 474), it was held that the principle of natural justice is part and parcel of the law of procedure and even if such principle is not expressly embodied in the Code of Civil Procedure, but where the lower Court by order permitted withdrawal of the suit with liberty to bring a fresh suit under Order XXIII, rule 1, C.P.C., without notice to the defendant, the order would be open to revision under section 115, C.P.C. Similarly in Ahmad Bakhsh v. Allah Bakhsh (PLD 1962 (W.P) Lah. 476), it was held that a revision under section 115 of the Civil Procedure Code is competent against an order passed under Order XXIII, rule 1, C.P.C, if such order, allowing withdrawal of a suit is based on grounds which are not contemplated under Order XXIII, Rule 1, C.P.C. It was further held that such would be an irregular exercise of jurisdiction vested in the Court. The observations, however, further go on to indicate that, if the ground stated in the order is of a kind which is within the purview of Order XXIII, rule 1, then whether in the circumstances the grounds were sufficient or not, the revisional Court will not go into that matter.

10. It may be pointed out in this regard that, under Order XXIII, rule 1, C.P.C., the Court is clearly vested with power to permit withdrawal from the suit with liberty to plaintiff to institute a fresh suit on the same cause of action on such terms as the Court deems fit. Although, the use of the words 'whether the Court is satisfied' in sub-rule (2) of rule 1 of Order XXIII indicates that the Court before granting such permission to the plaintiff must satisfy itself as to the existence of grounds upon which such permission is sought but, in our view, merely for the reason that the Court has failed to record such grounds n its order, it would not be open to the Court to question whether such leave has been validly granted or not. In any case, there is a well settled principle that no party can be made to suffer on account of an error of the Court. Therefore, if I the grounds upon which such permission was granted to the respondent to institute a fresh suit, cannot be spelt out from the order of the Court, such objection cannot be allowed to be raised subsequently. Consequently, in our view, no prejudice can be said to have been caused to the appellants on this account.

11. The next question urged by Mr. Gul Zarin Kiyani is that, concurrent findings of fact given by the two Courts below on issues Nos.6 and 7 could not have been interfered with by the learned Judge in Chambers in the exercise of revisional jurisdiction of the High Court. Support has been sought by the learned counsel from the case of N.S. Venkatagfri Ayyangar v. The Hindu Religious Endowments Board, Madras (AIR 1949 PC 156). It was observed by their Lordships of the Privy Council in this case that, 'section I ' 15, C.P.C. empowers the High Court to satisfy itself upon three matters: (a) That the order of the subordinate Court is within its Jurisdiction; (b) That the case is one in which the Court ought to exercise jurisdiction and (c) That in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provisions of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material, in that it may have affected the ultimate decision. " It was further observed that, "if the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly from the conclusions of the subordinate Court upon questions of fact or law. " Somewhat similar observations were made by their Lordships of the Privy Council in the case of Joy Chand Lai Babu v. Kamataksha Chaudhury (AIR 1949 PC 239). The question was also considered by this Court in Mst. Shumal Begurn v. Gulzar Begum (1994 SCMR 818), and it was observed by one of us (Saiduzzaman Siddiqui, J.) in this case that: "The revisional jurisdiction under section 115, C.P.C. exercised by the High Court is attracted only in case where the lower Court has exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore quite clear that the High Court while exercising revisional 'jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non-consideration of legal evidence on record the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The fact recorded by the trial Court is preferable to the finding of fact recorded by the first appellate Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first appellate Court is the final Court in so far the findings of facts are concerned and such finding can only be disturbed in revisional jurisdiction by the High Court if it is arrived at by the first appellate Court either by misreading the evidence or- through perverse appreciation of evidence on record or due to non-consideration of legal evidence on record.

12. This Court-was once again called upon to examine the question in Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1984 SC 291) and the observations in the judgment at page 293 of the report are reproduced as follows:

4. It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C., unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by' the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent 'finding of fact in revisional jurisdiction under section 115, C.P.C., is still narrower. The High Court in exercise of its jurisdiction under section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case, (See Umar Dad Khan v. Tilla Muhammad Khan, PLD 1970 SC 288, Muhammad Bakhsh v. Muhammad Ali 1984 SCMR 504, Muhammad Zaman v. Zafar Ali Khan PLD 1986 SC 89 and Abdul Hameed v. Ghulam Muhammad 1987 SCMR 1005). Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Courts. The fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived at by the two Courts below, could never be ' a ground justifying interference with a finding of fact much less a concurrent finding recorded by the two Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C, P.C. These cases do not make any further observations in this regard necessary

14. So far as the findings of the learned Courts below on issues Nos.6 and 7 are concerned which have been upset by the learned Judge in the High Court, the first question is, whether the suit filed by the respondent was 'benami'. It is pertinent to first point out that the word 'benami' has not been used in this case in the same sense as it is generally understood in connection with ownership of property, because the case of the appellants before the trial Court was that the said suit had been filed by the respondent at the instance of one Khushi Muhammad. As was pointed out earlier, the contention raised on behalf of the appellants in the written statement was that, the suit for pre-emption had been filed by the plaintiff-respondent at the instigation of some other person, however, such person was not named in the written statement which was filed on behalf of the appellants. It is only when statements of witnesses were recorded by the Court, it transpired that one Khushi Muhammad had provided finance to the plaintiff to file the suit. Even if the contention is accepted as true, the same cannot be held as sufficient to non-suit the plaintiff in the case. However, not only that the said plea had not been specifically raised by the appellants in their written statement filed before the Court but apart from the said allegations, the appellants had failed to adduce any positive evidence in this regard to discharge their initial burden. Consequently, the findings arrived at on this issue by the learned trial Court which were also upheld by the appellate Court, were not accepted by the High Court. In our view, the view taken by the High Court is not open to exception.

15. The findings on issue No.7 have also been reversed by the learned Judge in the High Court as he has held that Jamabandi for the years 1977-78 and 1981-82 respectively has tilted the balance in favour of the plaintiff. The learned Courts below had earlier held that although the documents adduced in evidence had shown that the respondent had a better claim of ownership in Khata in the said mouza but subsequently the appellants had improved their status within the period prescribed by law by acquiring ownership. However, there findings were held by the learned Judge in Chambers to be based on misreading of evidence Consequently, it cannot be said that the High Court acted without jurisdiction while upsetting the said finding. If the findings of the Courts below in respect of issue No.7 were based on misreading of evidence, such findings could be reversed by the High Court to correct such error in the exercise of its revisional jurisdiction. We are consequently of the view that the impugned judgment does not suffer from any defect so as to warrant interference by this Court in this appeal.

16. In the result, the appeal is dismissed, but with no 'order as to costs in view of the questions raised therein. H.B.T./M-293/S Appeal dismissed