2004 PLP 1245 (YLR)

(i) Whether the plaintiff lacks cause of action to file this suit? OPD (ii) Whether the suit is not maintainable and defendants are entitled to compensatory costs if so, to what extent? OPD (iii) Whether the cancellation of plot from plaintiff's name is against law and facts therefore, ineffective against the rights of the plaintiff? OPP (iv) Relief.

2. The learned trial Court dismissed the suit vide judgment and decree dated 30-3-2002. The respondent being aggrieved preferred an appeal before the learned Additional District Judge, Gujranwala, who accepted the same vide judgment and decree dated 16-7-2003, hence, the present revision petition.

3. The learned counsel of the petitioners submits that judgments of both the Courts below are at variance. He further submits that First Appellate Court did not advert to the reasoning of the trial Court and reversed the findings of the trial Court, which is based on surmises and conjectures. He further submits that the First Appellate Court erred in law to arrive at a. different conclusion on the basis of the evidence on the record qua Issue No.3, which was material issue between the parties. He further submits that respondent secured a plot by playing fraud with the petitioners, therefore, the trial Court was justified to dismiss the suit of the respondent-plaintiff whereas the First Appellate Court erred in law to accept the appeal of the respondent plaintiff.

4. I have given my anxious consideration to the contentions of the learned counsel of petitioners and perused the record.

5. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:-- (i) Respondent submitted the application for allotment of the plot in question on 25-6-1981; (ii) petitioner No.2 issued allotment letter to respondent-plaintiff on 25-4-1982; (iii) petitioner No.2 also issued possession slip to respondent plaintiff on 2-4-1983; (iv) respondent-plaintiff had paid all the dues to the petitioners; (v) the petitioners cancelled the plot in question from the name of the respondent-plaintiff vide letter dated 8-12-1996. In case the aforesaid facts are put in juxtaposition then the principle of locus poenitentiae is attracted in all respects, therefore, the First Appellate Court was justified to reverse the findings of the trial Court, which is in consonance with the law laid down by the Honourable Supreme Court in Abdul Hameed's case PLD 1969 SC

407. It is pertinent to mention here that there is no column in the application form to be filled by the respondent-plaintiff by mentioning the number of his National Identity Card, therefore, the trial Court erred in law to non-suit the respondent plaintiff whereas the First Appellate Court was justified to reverse the findings of the trial Court as there is no condition precedent in the rules and regulations of the petitioners at the time of submitting the application by the respondent-plaintiff to mention the number of National Identity Card in the application form. It is settled principle of law that public functionaries are duty bound to act in accordance with law as is envisaged by Article 4 of the Constitution read with Article 5(2) of the Constitution. The action of the petitioners is in derogation of their own rules and regulation, therefore, the First Appellate Court was justified to accept the appeal of the respondent-plaintiff, which is in accordance with the law laid down by the Honourable Supreme Court in Ali Mir's case 1984 SCMR

433. It is also settled principle of law that the First Appellate Court has a right to reappraisal the evidence on record and after reappraisal to B come to a different conclusion as the law laid down by the Privy Council in "N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madrass" PLD 1949 PC

26. The judgment of the Privy Council was followed by this Court in "Board of Intermediate & Secondary Education, Lahore v. Syed Khalid Mehmood" 1985 CLC

657. It is pertinent to mention here that the judgment of this Court was upheld by the Honourable Supreme Court. The Privy Council has laid down the following principle in the cited judgment to interfere while exercising powers under section 115, C.P.C.:-- "This section 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 provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law." The learned counsel of the petitioners failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment, therefore, I do not final any infirmity and illegality in the judgment of First Appellate Court. In view of what has been discussed above, this revision petition has no merit and the same is dismissed. M.H./G-2/L Revision dismissed.