2017 PLP 939 (YLR)

MUHAMMAD YOUNIS THAHEEM, J.

This revision petition is directed against the judgment and decree dated 22.11.2011 passed by learned Additional District Judge/Izafi Zila Qazi-11, Swat, whereby appeal filed by the petitioner against the judgment and decree dated 07.6.2011 passed by learned Civil Judge/Illaqa Qazi-XVII, Swat was dismissed, resultantly, suit of the plaintiff/petitioner was concurrently dismissed.

2. Brief facts of the case are that plaintiff/petitioner, Zahir Shah filed a money suit against the defendant/ respondent, Abdul Ghaffar for recovery of Rs. 90,000/- details of same are mentioned in the plaint.

3. On appearance, the defendant/ respondent contested the suit by filing written statement, wherein he raised several objections both legal and factual. Out of the divergent pleadings of the parties, the learned trial Court framed necessary issues, thereafter, the parties were allowed to produce evidence as they wished and on conclusion of trial and hearing arguments of the parties, the suit of plaintiff/petitioner was dismissed by the learned trial Court vide judgment and decree dated 07.6.2011.

4. Feeling dissatisfied, the present petitioner preferred regular civil appeal bearing No. 225/13 of 2011 before the learned appellate Court, which also met the same fate vide impugned judgment and decree dated 22.11.2011, hence, instant revision petition.

5. Valuable arguments of learned counsel for the parties heard and available record perused with their able assistance.

6. Perusal of the record reveals that present petitioner filed a civil suit for recovery of Rs. 90,000/- and according to the stance of plaintiff/petitioner he paid Rs. 75,000/- in lieu of providing of visa for abroad to the defendant and Rs. 15,000/- for mental torture and agonies caused to him, in view of failure of providing visa. In the instant case, the learned trial Court framed specific issue No. 8, which is reproduced as under:--

7. The burden of proof was upon the plaintiff/present petitioner to prove the factum of payment of Rs. 75,000/- allegedly paid to the respondent as narrated in his plaint. In his statement, he stated that he paid the said amount to the respondent in the P.C.O. in presence of Raza Khan, PW-5 and Aziz-ur-Rahman, PW-6, but above two PWs i.e. 5 and 6 and plaintiff/petitioner as PW-1 contradicted each other on material points in respect of payment of amount to the defendant.

8. The plaintiff appeared as PW1; he during examination in chief and in his plaint neither narrated the name of person before whom he paid alleged amount nor expressed particulars about the place, date and time of above payment but during cross-examination he deposed that he paid the alleged amount to the defendant at 10/11 A.M., while Raza Khan, PW-5, Azizullah PW6 and other person Islahuddin were present.

9. The PW5 Raza Khan during cross-examination deposed that amount was paid to defendant at 'Mazigar Wela' in presence of Salah-ud-Din Bacha and one Saifoor and this witness did not mention the name of Aziz-ur-Rahman, PW-6 that he was also there.

10. Similarly, PW-6 Aziz-ur-Rahman narrated altogether different story by deposing that in order to send his son Waris Khan abroad he had given Rs. 30,000/- to the defendant on the assurance of plaintiff/ petitioner, but his son could not be sent to foreign, though affidavit was filed on behalf of son of Aziz-ur-Rahman by the plaintiff, but for reasons best known to plaintiff, he was not produced before the Court as witness. There are omissions and variations in the pleadings and the proof in the case, which under the law are not permissible. In this respect, reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan titled as "Binyameen and 3 others v. Chaudry Hakim and another" (1996 SCMR 336). Thus, the payment of Rs. 75,000/- as alleged by the plaintiff to the defendant had not been proved through solid and convincing evidence.

11. Moreover, from the arguments advanced before this Court as well as learned appellate Court, it transpires, that previous to instant suit filed by the plaintiff, the defendant Abdul Ghaffar also filed a suit against the present plaintiff/ petitioner on 22.4.2009, which was dismissed on 28.9.2010, so, it could safely be ascertained that the suit of plaintiff was counter-blast to the suit instituted by the defendant.

12. This Court after examining the entire evidence on record and hearing arguments of learned counsel for the parties reaches to the conclusion that both the learned Courts below had properly appreciated the evidence on record in its true legal perspective and correctly non-suited the plaintiff/petitioner. As it is concurrent findings, so to annul the concurrent findings, it is necessary that the petitioner should brought on record, such piece of evidence or point out such illegality or irregularity, which was not considered by the fora below, while passing the impugned judgments and decree, but he failed to point-out the same. In this regard, wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan titled as "Muhammad Idress and others v. Muhammad Pervaiz and others" (2010 SCMR 5).

13. So, in view of what has been discussed above, the judgments and decrees passed by the fora below are based on proper appreciation of evidence and law, needs no interference under section 115 of C.P.C, thus, the instant revision petition being bereft of merits stands dismissed with no order as to costs. MQ/12/P Petition dismissed.