2006 PLP 1262 (MLD)

IJAZ-UL-HASSAN KHAN, J.

This civil revision is directed against the judgment and decree dated 9-6-2005, passed by learned Additional District Judge, Malakand at Dargai, whereby he dismissed the appeal of the petitioner, which was filed against the judgment and decree dated 30-4-2004 of learned Civil Judge, Dargai.

2. Precisely narrated the facts, relevant for the disposal of instant civil revision are, that Hashtamand, plaintiff, instituted suit against Habib Khan and Hussain Khan, defendants, for a declaration to the effect that plaintiff was owner in possession of suit path by virtue of stamp deed No.872 dated 10-10-1995 and defendants have no justification to interfere with his right and prevent him to use the path in suit.

3. The suit was contested by defendant No.1 alone. Defendant No.2 admitted the claim of the plaintiff. After framing relevant issues arising out of the pleadings of the parties and recording such evidence as the parties wished to adduce, learned trial Judge dismissed suit by his judgment and decree dated 30-4-2004. An appeal was preferred there against, which did not succeed. The same was dismissed by learned Additional District Judge, by judgment dated 9-6-2005. Hence the present civil revision.

4. I have heard in detail Mr. Nasimullah, Advocate for the petitioner and Mr. Khalilullah, Advocate representing respondent No.1, on pre-admission notice, I have also perused the record with their assistance. 4A. Learned counsel for the petitioner strenuously contended that the evidence of the petitioner available on the file was ignored by the Courts below, which amounts to misreading and non-reading of evidence and the matter has been 'decided in a slipshod manner, without application of independent mind, which has resulted in manifest injustice. The learned counsel maintained that Courts below have failed to appreciate the point involved in the case in its true perspective and the appellate court has not decided the appeal issue-wise and thus has acted illegally. Learned counsel for respondent No.1, on the contrary, refuted the arguments of learned counsel for the petitioner and supported the impugned judgment whole heartedly.

5. Having heard the arguments of the learned counsel for the parties in the light of the material on file, I find that the concurrent findings of fact recorded by the Courts below are based on correct appreciation of the evidence and hardly call for interference of this Court in its revisional jurisdiction. The evidence produced by the petitioner is deficient and does not inspire confidence. It is settled law that the person who comes to Court and asserts the facts to be believed true by the Court, has the burden to prove it by bringing cogent evidence to it on record. In the instant case no such evidence has come forward. The stamp deed (Exh.P.W.2/1), which is the foundation of the petitioner's claim, has not been satisfactorily proved. The witnesses to the deed have not been produced. No reason for withholding these witnesses has been given. It is well-settled principle of law that if a best piece of evidence is available by a party, then it is presumed that the said party has some sinister motive behind it and a presumption under illustration 'g' of Article 129 of 'Qanun-e-Shahadat' Order can be drawn that had the said evidence been produced, it would have not been favourable to the party concerned.

6. Needless to emphasize that findings on question of fact or law recorded by competent Court of law/jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularity. The jurisdiction of the High Court to interfere with the concurrent findings of fact in revisional jurisdiction under section 115 C.P.C. is very limited. 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 Courts below 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 affecting its jurisdiction in the case.

7. The next submission of the learned petitioner's counsel that appellate Court had failed to record judgment issue-wise and separately in terms of the requirement of Order XX Rule 5 C.P.C. and thus the case is fit for remand in terms of Order XLI Rule 23, thereof, the submission is equally without force. Order XX, rule 5 C.P.C. is evidently applicable to the original Court, which hears a civil suit. As regards appellate Court, the requirement of recording finding issue-wise is not mandatory. It is sufficient for the appellate Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error as held by this Court in Naimat Khan and others v. Hamzullah Khan and others 2006 CLC

125. The appellate and the revisional Court are always empowered to remand the case in terms of Order XLI, rule 25 C.P.C. but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of the jurisdiction. Pursuant to above, the civil revision having been found bereft of merit, is hereby dismissed, with no order as to costs. H.B.T./100/P?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.