2013 PLP 454 (YLR)

MUHAMMAD SHAFI SIDDIQUI, J.

This revision application is arising out of concurrent findings of two courts below. The judgment and decree of the trial Court were passed on 30-3-2007 whereas those of the Appellate Court were passed on 11-5-2010 and 13-5-2010 respectively. Learned counsel for the applicant submits that his case is within four corners of the revisional powers of this court. His main arguments are two fold; firstly that the Appellate Court has not framed the "points for determination" as required under Order XLI, Rule 31, C.P.C. and secondly it is based on gross misreading of evidence and documents placed in support thereof. Learned counsel for respondent has supported the judgments and decrees of the Trial Court as well as of Appellate Court and submits that specific performance is a discretionary relief and it cannot be claimed as a matter of right. Learned counsel for respondent submits that there was substantial compliance as far as Order XLI, Rule 31, C.P.C. is concerned as the entire evidence was considered by the two courts below at the time of passing of judgment and decree. I have heard learned counsel and perused the record. The first and the foremost point is with regard to framing of points for determination. While deciding this point I would like to reproduce Order XLI, Rule 31, C.P.C. as under:-- O.XLI, Rule

31. Contents, date and signature of judgment. The judgment of the Appellate Court shall be in writing and shall state-- (a) the points for determination; (b) and decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied the relief to which appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. The arguments of learned counsel for the applicant as raised before this Court appears to have been mentioned at page 4 of the Appellate Court judgment. It has been categorically recorded by the Appellate Court that the applicant raised arguments regarding failure of the trial Court to appreciate evidence, dismissal of suit illegally though the execution of sale agreement is proved. The contention of the applicant that there was no denial of the sale agreement through their evidence, is also incorporated in the Appellate Court's judgment. The findings of the Appellate Court start from page 5 and each and every argument as raised by the applicant before the Appellate Forum was responded substantially. This court being the court of revisional jurisdiction and exercising jurisdiction thereunder cannot travel beyond the powers as prescribed under section 115, C.P.C. The powers of revisional court are as under:-

115. Revision [(1) The High Court may call for the record of any case which has been decided by any Court subordinate] to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, It is not the case of the applicant that the courts below have exercised jurisdiction not vested in it by law. It is also not the case of the applicant that the courts below failed to exercise jurisdiction so vested. It is however submitted that as far as non-compliance of Order XLI, Rule 31 C.P.C. is concerned it amounts to acting in the exercise of jurisdiction illegally and with material irregularity. This debate as to whether at the time of passing judgment by the Appellate Court it ought to have "framed" point for determination appears to be immaterial when all material questions as raised were answered by Appellate Court though it may not have (framed) point in numerical manner. The Appellate Court's and trial Court's concurrent findings, may it be correct or erroneous, this revisional court cannot interfere with such findings. The findings of facts and law arrived at cannot be disturbed or interfered by this court. The judgments and decrees of courts below are well founded and well reasoned and would not call for interference in revisional jurisdiction specially when no misreading or non-reading of evidence or any error or lack of jurisdiction on the part of the courts below was brought to light. Appreciation of evidence and substituted the findings on the basis of such appreciation is not in domain of the High Court while exercising revisional jurisdiction. Even erroneous findings of facts and law arrived at, is not open to revision on the ground that appreciation of evidence was not proper as it amounts to reappraisal of evidence which is not permissible in revisional jurisdiction. The compliance of Order XLI, Rule 31, C.P.C. has to be in substance and it appears that the Appellate Forum in appeal has given its findings and reasoning in detail and in substance after considering evidence. Framing of points for determination in fact and practically is the same as the issues framed by the Trial Court and incorporated in the judgment of the Appellate Court. The three ingredients of Rule 31, C.P.C. thus stood substantially complied i.e. (a) the "points for determination" is the same as the issues framed and categorically answered (b) the "decision" has also been made, (c) complying with requirement of Rule 31, C.P.C. as well as "reasoning for its decision" is also available with the judgment of the Appellate Court, thus it cannot be assumed that there is no compliance of Order XLI, Rule 31, C.P.C. Contentions that the points for determination have not been formulated in a sequential manner thus appears to have lost force when all material questions have been answered. They may not have been formulated in a peculiar format but the findings provided by the Appellate Court after considering evidence on record constitute substantial justice and substantial compliance and hence no separate findings are required as the material points in controversy have been addressed. Evidence on the facts of the case had been adequately discussed and assessed by both the Trial Court as well as Appellate Court. Similar view was taken in the case of Hafiz Ali Ahmed v. Muhammad Abad reported in PLD 1999 Karachi 354:

O.XLI, R.31 & S.115

Material points involved in the case had been substantially discussed

Concurrent findings were based on proper appreciation of evidence

No misreading of evidence was found in the findings of the Court below

Contention that appellate judgment be set aside on the ground that formally the points for determination were not set forth, lost its force as the material points involved in the cases stood substantially decided. I may also refer to another case of Saindad v. Province of Sindh reported in 1997 MLD 1009:-- O.XVI, R.31 & S. 115

Non-recording of finding on separate issues

Such circumstance, however, did not affect jurisdiction of Appellate Court and evidently there had been no miscarriage of justice by not discussing each issue separately

Issue relating to maintainability, however, had been elaborately discussed; issue relating to impleading necessary party had not been pressed; while material issues had been dealt at length and no jurisdictional error appeared to have been committed by the Appellate Court--Interference in judgment in question, in exercise of revisional jurisdiction was not warranted in circumstances. Thus the substantial justice has been done where the Appellate Court appreciated the evidence and provided its own findings as has been done in this case and there is as such compliance of law as required. Although the learned counsel has relied on 2000 CLC 1352, 1992 CLC 1022, 2010 CLC 1931, 1992 CLC 1407, 1991 CLC 1499 but the facts and circumstances of the above cases of learned Single Judges are distinguishable to the facts and circumstances of present case. However I may discuss the judgment the honourable Supreme Court which has been relied upon by the learned counsel for applicant reported in 1968 SCMR

464. While dealing with Order XLI, Rule 31 the honourable Supreme Court observed that the question that arises out of the above referred rule is as to whether there has been a substantial compliance with the provisions of Rule 31 depends on the point of law involved in the case. The Appellate Court must indicate points raised and reasons for its decision. Thus the Supreme Court itself observed that the decision on the points is important but not the formation of the points for determination in a sequential manner. The exact observation of the Honourable Supreme Court is as under:-- "The question whether in a particular case there has been a substantial compliance with the provisions of Rule 31 would depend on the nature of the judgment which is under appeal. For example, if the finding on a question of fact has been arrived at on proper and legal evidence, there could thus be no ground for inter-ference under section 100 of the Code of Civil Procedure and therefore there would be no necessity of strict compliance with rule

31. But, when important points of law are involved in the case the Appellate Court must indicate the points raised and the reasons for its decision". This case in our hand is the same wherein the judgment of the trial Court was upheld by the Appellate Court and not the one where the findings, reasoning and decision is reversed by the Appellate Court. Had it been such, the strict compliance of formation of points for determination and the reasoning and findings would have importance, however, when the Appellate court upholds the judgment of the Trial Court and based its findings, reasoning and decision on evidence and discuss all points that have been argued and raised by the learned counsel and have been satisfactorily responded by the learned Appellate Court it constitute sufficient compliance as substantial justice has been done. In view of the aforesaid findings and reasoning I do not find any reason to interfere with the concurrent findings of learned Trial Court and Appellate Court as both the courts below have passed the impugned judgments and decrees in accordance with law and having jurisdiction and as such cannot be interfered in revisional jurisdiction of this court, particularly when no issue with regard to exercise of the jurisdiction illegally and with material irregularity was raised. Consequently the instant revision application is dismissed with no order as to costs. KMZ/M-122/K Petition dismissed.