2007 PLP 894 (CLC)

IJAZ-UL-HASSAN KHAN, J.

In brief, the factual background of the case is, that Fazal Hanan, plaintiff, had instituted suit on 25-4-1999, against Mukarram Jan, and others, defendants, claiming a declaration to the effect that plaintiff was owner in possession of suit property to the extent of 1/2 share, on the basis of agreement deed dated 31-2-1968 and agreement deed dated 18-10-1975 executed by Shah Jehan defendant No.9 whereby suit land was sold by him in favour of other defendants, was forged, fictitious and ineffective qua the rights of the plaintiff. The entries in the Revenue Record adverse to the interest of the plaintiff, were also brought under challenge. A prayer for grant of permanent injunction, restraining the defendants to alienate or transfer suit-land, in any manner, was also made.

2. The suit was resisted on all grounds legal as well as factual and claim of the plaintiff was repudiated. Relevant issues, arising out divergent pleadings of the parties, were framed. After recording such evidence as the parties wished to adduce, learned Civil Judge/Illaqa Qazi, Gulkadda at swat, dismissed the suit by her judgment and decree dated 31-7-2004. An appeal was preferred thereagainst which did not succeed. The same was dismissed by judgment dated 14-4-2005 by learned Additional District Judge/Izafi Zila Qazi, Swat.

3. Fazal Hanan, petitioner, feeling aggrieved thereby, has approached this Court by way of filing instant civil revision under section 115, C.P.C. which is before me for consideration.

4. Mr. Said Tahar Khan, Advocate for the petitioner mainly contended that impugned judgments and decrees of the two Courts below are laconic and suffer from the vice of misreading and non-reading of evidence and serious illegalities and irregularities have been committed in deciding the matter in question. Additionally, it was urged that a Local Commissioner should have been appointed to resolve the controversy effectively and properly and omission on the part of the Courts below to do so, has resulted in manifest injustice.

5. Controverting the arguments of learned counsel for the petitioner, Mr. Shamoon Ahmad Bajwa, Advocate for respondents Nos.1 to 4, submitted that the material on record has been appreciated in its true perspective and the Courts below have recorded concurrent finding of fact about the genuineness or otherwise of the agreement deed in question dated 21-2-1968 and as the findings of the Courts below neither suffer from any misreading or non-reading of evidence nor entail any jurisdictional defect, therefore, this Court while sitting in revisional jurisdiction is not supposed to interfere with such findings.

6. Having considered the matter from all angles in the light of the material on record, I find that there are concurrent findings of the Courts below and the same cannot be called in question through a revision petition unless it is shown that the Courts below either had no jurisdiction or failed to exercise the 'jurisdiction vested in them or committed some illegality and material irregularity, resulting in gross injustice while deciding the suit and the appeal. The fact that a different view of the evidence could be taken by the two Courts below is no ground for setting aside such findings in exercise of its revisional jurisdiction by this Court, unless the said findings are shown to be perverse. The Courts below while passing the impugned judgments and decrees took account of every bit of evidence placed before them and were not shown to have overlooked any part of the record from their judicious consideration.

7. The revisional jurisdiction of this Court is restricted and constructed. It is not co-extensive with the powers of trial Court and Appellate Court which have to advert to all legal and factual controversies. A revisional Court within the scheme and stance of section 115, C.P.C. has merely to see whether there were failure to exercise jurisdiction vested in the Court, the jurisdiction was exercise which was not so vested and there was no material illegality and irregularity. Both the Courts below have rightly concluded that agreement deed in question dated 21-2-1968 has not been proved satisfactorily and I see no good reason to differ and take a contrary view.

8. Adverting to the contention of learned counsel for the petitioner, regarding appointment of a Local Commissioner, I find that the discretion lies with the Court, whether to appoint a Local Commissioner or not and Court was not bound to appoint Local Commissioner in cases where controversy could be resolved by producing evidence of the parties, then spot inspection through Local Commission was not permissible. The Court itself has to decide necessity of local investigation. The appointment of the Local Commissioner is the prerogative of the Court and the local investigation through the Local Commissioner could not be a substitute of legal evidence. Kishwar Bano and 2 others v. Metropolitan Corporation, Lahore through Administrator and another 2003 CLC 397 and Mirza Muhammad Saeed v. Muhammad Akram Munir and others 2001 YLR

919. Both the Courts below have not thought it necessary to appoint a Local Commissioner in the matter in dispute for valid reasons which are not open to legitimate exception. The Local Commissioner cannot be appointed to fill in the lacuna. The petitioner could not seek appointment of Local Commissioner for his own convenience when he was not in position to prove his plea through evidence. It is settled law that in order to succeed plaintiff has to stand on his own legs, it is for him to prove his case and he cannot be benefited by the weakness, if any, of his adversary.

9. Pursuant to above, I am satisfied that the findings of the Courts below are neither based on misreading or non-reading of evidenced nor the same suffer from any jurisdictional defect warranting interference of this Court in its revisional jurisdictional. The civil revision is bereft of substance. The same is dismissed with no order as to costs. H.B.T./56/P Petition dismissed.