P L D 1966 (W (PLP)

Altaf Hussain on behalf of Muhammad Ali Aqdas for Petitioners. Q. Sahabuddin Khan for Respondent. Date of hearing: 25th March 1966. The short question raised in this revision petition is as to whether the appraisement of evidence by the first Appellate Court substituting its own assessment of the evidence for that of the trial Court is a revisable order under section 115 of the Civil Procedure Code.

2. The admitted facts giving raise to this revision petition are that on 26‑9‑63 an ex parte decree was passed in favour of the petitioners against the respondent for recovery of Rs. 200 as damages. On 11‑1‑1964, the respondent applied for setting aside the ex parte decree, on the ground that he had no knowledge of the decree and that he came to know about the ex parte decree when warrant for his arrest was shown to him. On the evidence produced by the parties, the trial Court dismissed the application on 3‑6‑1964, holding that the respondent bad the knowledge of the decree. The Additional District Judge, by his order dated 14‑1‑1965, came to a different conclusion and held that Muhammad Rafiq process server had not complied with the order of the Court ordering substituted service which had to be effected only if the respondent had refused to accept the service and that the process server bad not tried to serve the summons on him. The petitioners feeling aggrieved have come up on revision petition.

3. Even a second appeal under section 100 of the Civil Procedure Code would not lie merely on the ground of an error on a question of fact in that clause (c) of that section gives right of second appeal on the ground of an error in law or procedure. The scope of first appeal differs from that of the second appeal in that the former is not limited to any particular grounds of appeal, while in the case of the latter second appeal would lie only in the three contingencies mentioned therein. Section 100 read with section 101, C. P. C. is based on the ground of public policy expressed in the maxim interest reipublicae ut sit finis litium. It concerns the State that there be an end to litigation. The policy of the law is that the first appellate Court has the last say on the question of fact and erroneous finding however gross or inexcusable on the question of fact provided all the material evidence has been considered is not subject to second appeal.

4. To bring the case under clause (c) of section 115, C. P. C.,) it must be proved that the Court has acted "illegally", i.e. in breach of some provision of law, or with "material irregularity", i.e., by committing some error of procedure in the course of the trial. The question of appraisement of evidence does not come within the ambit of "illegality" or "material irregularity". In Balakrishna Udavar v. Vasudeva Iyer (AIR1917PC71) their Lordships of the Privy Council observed:‑

"The section applies to jurisdiction alone, the irregular exercise, or the non‑exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."

5. It follows from the above discussion that a decision arrived at in the proper exercise of jurisdiction which may be erroneous in law or in fact is not a ground for revision.

6. In the result, the revision petition fails and is dismissed with costs. S. A. H./S.Q. Petition dismissed.