P L D 2003 Supreme Court 362 (PLP)

The revisional jurisdiction of the High Court is discretionary which should .not be exercised if the substantial justice has been done between the parties. The mere fact that High Court differed on a question of fact or a mixed question of law and fact was not a valid ground for interference in the concurrent findings. The Court having the jurisdiction to determine the question in issue cannot be said to have acted illegally or with material irregularity merely for the reason that the decision arrived at by the said Court was erroneous. The concurrent finding recorded on the basis of evidence is not susceptible to a further review to justify the interference by the High Court in the matter in its revisional jurisdiction. In the present case two Courts subordinate to the High Court while recording concurrent findings of fact on the issue of payment of sale price, have neither misread and misconstrued nor kept out of the consideration any material evidence to suggest that the Courts have committed any material illegality or irregularity in exercise of the jurisdiction to attract interference of the High Court under section 115, C.P.C. The misreading or non‑reading of evidence on the material point, certainly justifies the interference of High Court in revisional jurisdiction but such irregularity on a point inconsequential to the merits of the case, would not be a ground for interference. In the present case, the High Court reversed the findings of fact through reappraisal of evidence in civil revision beyond the scope of revisional jurisdiction. The mis appreciation of evidence is different to the misreading and non‑reading and there is no concept of upsetting the findings of fact by the High Court through appraisal of evidence in revisional jurisdiction in case of mis appreciation of evidence by the lower Courts. Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant. Mushtaq Ahmed Tahirkheli, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents. Date of hearing: 21st January, 2003. MUHAMMAD NAWAZ ABBASI, J.‑‑‑This appeal by leave of the Court has been directed against the, judgment dated 15‑6‑1995 passed by a learned Single Judge of Peshawar High Court, Abbottabad Bench, in a civil revision arising out of a suit for declaration and permanent injunction.

2. Leave in this appeal was granted vide order dated 25‑2‑1996 in the following manner:‑‑ "Petitioner before us is plaintiff in the suit, which was filed by him for declaration and injunction to the effect that he was the owner in possession of the suit land and that the transaction with regard to its sale in favour of defendant No. 1 did not materialize as the consideration was not paid, hence Mutation No.759 was liable to be cancelled. Keeping in view the pleadings of the parties as many as 15 issues were framed, from which the crucial issue is whether the defendants have paid the sale consideration to the plaintiff and the defendants are in possession of the suit property and therefore, the mutation in dispute has rightly been entered in favour of the defendants. The trial Court after evaluation of the evidence decreed the suit, against which an appeal was filed which is allowed and in consequence, instead of declaration, the suit was decreed for Rs.40,000 as price of suit land to be paid to the plaintiff by defendants. Against the said decision, a revision application was filed in the High Court, which is allowed and in consequence the suit is dismissed in toto. Before us contention is raised on behalf of the petitioner/plaintiff that the suit should not have been dismissed in toto by the High Court as burden of proof with regard to the payment of sale consideration amounting to Rs.40,000 was on the defendants, who made positive assertion that they made the payment after denial by the plaintiff and in that connection evidence produced by the parties has not properly been assessed by the First Appellate Court and the High Court. It is further contended that the mutation was not sanctioned and possession remained with the plaintiff as the sale consideration was not paid. Leave is granted to examine the evidence in. the light of the contentions mentioned above. "

3. The trial Judge having come to the conclusion that the sale was without consideration decreed the suit. The Appellate Court reversed the judgment of trial Court with the observation that the sale was admitted but the evidence produced by Mst. Zeenat Jan would not give an indication of payment of sale price and consequently modified the decree for payment of sale consideration. The learned Single Judge in the High Court after detailed discussion of evidence held that the burden of proof of the fact that the sale was without consideration was on the vendor who asserted non‑payment and having come to the conclusion that the vendor plaintiff in the suit awfully failed to establish and substantiate his claim by any cogent evidence allowed the civil revision and dismissed the suit.

4. Learned counsel for the appellant has contended that the concurrent findings of fact of the Court of first instance and the Appellate Court regarding non‑payment of sale consideration was reversed by the High Court in civil revision through reappraisal of evidence without pointing out any misreading or non‑reading of evidence or gross miscarriage of justice. Learned counsel submitted that the finding of fact cannot possibly be upset in the revisional jurisdiction through appraisal and re‑appraisal of evidence and that in any case on denial of payment by the appellant, the burden was on respondent vendee to establish through cogent and convincing evidence that payment was made. In nutshell, learned counsel submitted that under the law appellant was not required to prove the negative fact rather the respondent vendee had to prove the payment of sale price as positive fact through very strong evidence and in case of failure, the presumption would be raised in favour of non‑payment of sale consideration. Learned counsel, however, frankly conceded that since the declaratory decree being sought by the appellant could not possibly be granted in the given facts, therefore, the decree for money was rightly passed by the Appellate Court. The learned counsel representing the respondent on the other hand, forcefully argued that the appellant while appearing before the Revenue Officer has admitted payment of sale price in presence of the witnesses and the said witnesses affirmed this, fact in their statements in the Court and that the payment was established on record through confirmatory evidence of Revenue Officer and also respondent vendee which remained unchallenged, therefore, the burden would be shifted to the appellant to prove non‑payment. It was next argued by the learned counsel that there was bundle of evidence in proof of the payment of sale price produced by the vendee whereas the appellant, except bare denial, has brought no evidence on record to substitute his claim and since the subordinate Courts were misdirected in appreciating the correct factual position and by committing a material irregularity drew a wrong inference through misreading the evidence causing injustice to the respondent, therefore, the learned Judge in Chambers in the High Court was justified in correcting the illegality in the revisional jurisdiction. In support of the above contention. learned counsel has placed reliance on Shaukat Nawaz v. Mansab Dad (1988 SCMR 851) and Muhammad Bakhsh v. Province of Punjab (1994 SCMR 1836). The learned counsel, with reference to Fazal Elahi Siddiqui v. Pakistan (PLD 1990 SC 692) has argued that the presumption of truth would be attached to the admission made by the appellant before the Revenue Officer in the light of principle that regularity of official act cannot be dislodged by making an allegation of fraud unless such allegation is substantiated through the evidence.

6. In view of the nature of controversy involved in the case regarding the payment of sale consideration, the sole question requiring determination would be related to the mode of proof of payment. The perusal of record would show that the vendee, except the mutation containing the alleged admission of vendor, has not brought any document showing payment of sale consideration. The appellant had admitted the sale of land but denied the payment of sale price to him in the written statement and also in his statement before the Court. The appellant also denied to have made any admission regarding the payment of sale price by the vendee before the Revenue Officer. There can be no exception to the rule that payment of sale price can also be proved through oral evidence but the oral evidence must be direct and of unimpeachable character. This is an admitted fact that payment was not made before the Revenue Officer and the remaining witnesses including vendee herself were not consistent about the mode and manner of payment. We find that the Court of first instance and Appellate Court after detailed discussion of evidence. concluded that sale consideration was not paid and the above finding of fact of the two Courts was reversed by the learned Judge in Chambers in the High Court with the observation that the vendor‑appellant failed to discharge the onus of proving the fact relating to the non‑payment. The learned counsel for the respondent has not been able to satisfy us that the concurrent finding of the two Courts on the abovequestion of fact was suffering from any defect of misreading or non‑reading of evidence or the material facts were misconstrued in coming to the conclusion that sale price remained unpaid. The revisional jurisdiction of the High Court is discretionary which should not be exercised if the substantial justice has been done between the parties. The mere fact that High Court differed on a question of fact or a mixed question of law and fact was not a valid ground for interference in the concurrent findings. The Court having the jurisdiction to determine the question in issue cannot be said to have acted illegally or with material irregularity merely for the reason that the decision arrived at by the said Court was erroneous. This is a settled law that the concurrent finding recorded on the basis of evidence is not susceptible to a further review to justify the interference by the High Court in the matter in its revisional jurisdiction. We having gone through the record with the help of learned counsel for the parties find that two Courts subordinate to the High Court while recording concurrent findings of fact on the issue of payment of sale price, have neither misread and misconstructed nor kept out of the consideration any material evidence to suggest that the Courts have committed any material illegality or irregularity in exercise of the jurisdiction to attract interference of the High Court under section 115, C.P.C. The misreading or non‑reading of evidence on the material point, certainly justifies the interference of High Court in revisi6nal jurisdiction but such irregularity on a point inconsequential to the merits of the case, would not be a ground for interference. In the present case, the High Court reversed the findings of fact through reappraisal of evidence in civil revision beyond the scope of revisional jurisdiction. The misappreciation of evidence is different to the misreading and non‑reading and there is no concept of upsetting the findings of fact by the High Court through appraisal of evidence in revisional jurisdiction in case of misappreciation of evidence by the lower Courts.

7. For the foregoing reasons, we while setting aside the judgment of High Court impugned in this appeal, restore that of judgment and decree passed by the Appellate Court. This appeal stands allowed with no order as to costs. M.B.A./S‑268/S Appeal allowed.