P L D 1975 Supreme Court 295 (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑The dispute in this civil appeal is, confined only to the possession of 7 marlas of land comprising Khasra,. No. 122, situate in village Nassozai, Tehsil and District Campbellpur. It belonged to one Farid Khan sort of Bostan who sold it to Muzaffar Khan for a sum of Rs. 2,000, vide registered sale‑deed dated 6‑4‑1966. The sale was sought to be pre‑empted by Habib Khan respondent who alleged that the actual price of Rs. 700 was fictitiously exaggerated to Rs. 2,000 with a view to frustrate the pre‑emption of sale. It appears that before the institution of the suit by Habib Khan respondent. Mst. Bibi Jan appellant herein claiming to be the sister of Farid Khan vendor, had brought a suit to enforce her superior right of pre‑emption against Muzaffar Khan vendee, which was not resisted by the latter and was decided on 9‑5‑1967 when a consent decree was issued in favour of Mst. Bibi Jan. Accordingly, amending his plaint, Habib Khan also impleaded Mst. Bibi Jan as a co‑defendant with Muzaffar Khan vendee and challenged the consent decree in her favour on ground of collusion. In the course of the trial, a Pedigree‑table, Exh. P. 1, prepared by Muhammad Ashraf, Patwari (P W. 1) 'Was placed on the record by Habib Khan in order to prove that he was a distant kindred of Bostan father of Farid Khan. Although the pedigree‑table stopped at Bostan without further indicating his progeny yet a marginal note by the Patwari purported to show that on his death Bostan was succeeded by his son Farid Khan, his daughter Mst. Bibi Jan and his widow Mst. Hussain Jan. Basing his finding on the statement of Mst. Bibi Jan supported by the pedigree‑table, the learned Judge dismissed the suit of Habib Khan on the ground that Mst. Bibi Jan being the sister of Farad Khan vendor had superior right of pre‑emption. Issue No. 4 regarding collusive nature of the suit brought by Mst. Bibi Jan was also found against Habib Khan whose suit was accordingly dismissed: In appeal, however, the learned District Judge reversed the findings on issues Nos. 1 and 4 relating respectively to Mst. Bibi Jan's superior right of pre‑emption and collusive nature of the suit earlier brought by her. The pedigree‑table placed on the record by Habib Khan was not found to establish her relationship with Farid Khan vendor, though the fact of Habib Khan being his collateral was held to be proved beyond doubt. Likewise, on re‑appraisal of the evidence on issue No. 4. it was held that Mst. Bibi Jan had brought the suit in collusion with and for the benefit of Muzaffar Khan. Consequently, the appeal of Habib Khan was accepted and his suit was decreed.

2. Aggrieved by the judgment of the first appellate Court, Mst. Bibi Jan filed an appeal in the High Court A learned Single Judge of the Peshawar High Court held the findings of fact on the two issues to be sacrosanct and unchallengeable in second appeal.

3. Vide this Court's order, dated 3‑4‑1970, leave was granted to Mst. Bibi Jan to examine the contention that there had been an omission on the part of the High Court to examine the un-rebutted claim of Mst. Bibi Jan that she was the sister of Farid Khan vendor supported by an entry in the pedigree‑table to which a presumption of correctness attached under the Land Revenue Act.

4. It is clear from the High Court's judgment that the learned Judge treated the findings given by the District Judge on issues Nos. 1 and 4 questions of fact, as conclusive and became immune from challenge in second: appeal. On the other hand, the leave granting order is confined only to the re‑appraisal of evidence on issue No.

1. Thus even if this Court reverses the finding of the Court below on this issue holding Mst. Bibi Jan appellant to be the sister of Farid Khan and others having a superior right of pre‑emp tion, the adverse finding on issue No. 4 if allowed to remain intact, not being re‑opened in the leave granting order, the appeal was bound to fail. The first hurdle, therefore to be crossed by the appellant's counsel was as to whether this Bench should go beyond the leave granting order confined only to the reconsideration of the finding on issue No. t, and examine the whole case in its entirety. In order to overcome this hurdle, learned counsel relied on Hayat v. The State (P L D 1957 S C (Pak.) 207), Noora and another v. The State (P L D 1973 S C 469), Nazir Ahmad v. Mehar Din and others (1969 S C M R 53) and Manhelal and another v. Umrao Singh.(A I R 1931 P C 33).

5. Of course the last‑mentioned two authorities though pertaining to civil cases are hardly relevant. The first two authorities, however, deal with criminal cases and though somewhat collaterally helpful mad not be directly in point. Ordinarily in criminal matters, once leave is granted to examine a particular point if the circumstances of the case so require, the entire case may be re‑opened "for doing complete justice" as adumbrated Article 187(I) of the Constitution. The question is whether this principle can be extended to civil matters, where the dispute is inter partes? Article 187(1) is in general terms and does not distinguish between civil and criminal matters. Nevertheless the matter falls within discretionary jurisdic tion of the Court, which it would not hesitate to invoke to prevent failure of justice. In which cases and to what extent this power of the Court should be invoked will depend on the circumstances of each case. In M. Saghir Bhatti & Sons v. The Federation of Pakistan and another (P L D 1958 S C (Pak.) 221), there is an observation which clearly indicates that certain points not raised at the time when leave was granted were subsequently allowed to be urged during arguments. Though in Khairaiti and 4 others v. Aleem‑ud‑Din and another (P L D 1973 S C 295), a point not taken in the petition for leave to appeal was not allowed to be urged but that was a case of review petition in which the point was sought to be raised for the first time. Support could be analogically drawn from this Court's decision in Karamat Ali and another v. Muhammad Younas and others (P L D 1963 SC 191), based in turn on Charan Das and others v. Amir Khan and others (A I R 1921 PC 50). The question in that case was that the suit should be dismissed under section 42 of the Specific Relief Act in the absence of a prayer for consequential relief for the recovery or in the alternative amendment of the plaint may be allowed at the final stage by the Supreme Court. It was held by my Lord the Chief Justice that the Supreme Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or by taking away a valuable right accrued by lapse of time. But where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief the amendment would be allowed. It was further held that the amendment prayed for did not seek to alter the nature of the suit and merely brought in an additional claim which the appellants should have asked for in the suit and it would be a great hardship to defeat their right on a technical ground.

6. Although ordinarily, this Court would be rather reluctant to enlarge the scope of controversy by permitting new points to be raised yet it will not allow interests of justice to suffer on the altar of technicalities. In the instant case, it appears to me that having succeeded in obtaining leave on one point, learned counsel presumed it to be good enough to warrant the re‑examination of the entire case. As stated earlier, if the appeal were to be confined only to the point specified in the leave granting order and allowing the finding of the High Court on alleged collusive nature of the suit by Mst. Bibi Jan to remain unchallenged, it would have been entirely futile to grant leave if at all.

7. Learned counsel then contended before us Firstly, that the Courts below had erred in holding that the question of the relationship of Mst. Bibi Jan with Farid Khan based on the interpretation of the pedigree‑table being one of fact was immune from challenge in second appeal. It was argued that the un-rebutted statement of Mst. Bibi Jan herself appearing as D. W. 1 at the trial coupled with the pedigree‑table established beyond doubt that she was the sister of Farid Khan and as such once the finding of the District Judge was held to be no longer sacrosanct being vitiated by misreading of evidence her superior right of pre‑emption could not be disputed. Secondly, it was contended that likewise the finding on issue No. 4 was not warranted by evidence on the record and was based on no evidence being merely conjectural in nature.

8. There is considerable substance in these contentions. In the first instance, it would be appreciated that it was not a case of concurrent finding by the two Courts below but the findings arrived at by the trial Court on both the issues were reversed by the District Judge which were upheld in second appeal by the learned Single Judge on the technical ground that both pertaining to questions of fact had attained finality and could not be challenged. It was on this technical view of the matter that the appellant's appeal was dismissed by the High Court. No doubt, it has been consistently held in a chain of authorities starting from Durga Chouhrani v. Jewahir Sing Choudhry (I L R 18 Cal. 23 (P C)), up to Bharpura v. Diwan Chand (A I R 1940 Lah. 329), unexceptionally followed by the superior Courts of India and Pakistan that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact howsoever gross or inexcusable the error may be, yet there 18, ample authority for the proposition that no sanctity attaches even to a concurrent finding of fact based on misreading or misrepresentation of evidence as this would clearly bring the case within the scope of Clause (c) of section 100, C. P. C. This view, which was equally based on a number of authorities, was reiterated by my learned brother Muhammad Yaqoob Ali, J. In Fatima v. Khuda Bux and others (P L D 1959 Lah. 826), as a Judge of the former High Court of West Pakistan. In this elaborate judgment referred to with approval in a recent judgment of this Court Nazar Muhammad and another v. Mst. Shahzada Begum and another (P L D 1974 S C 22) his Lordship after reviewing the entire case‑law on the subject observed as follows:‑ "It may thus be safely concluded that if there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated end a Court of second appeal is entitled to review it." Earlier in the judgment, it was observed: "If there is no evidence in support of a decision, or the evidence is misrepresented, it would be said that there were no reasons for decision within the scope of clause (c) of Order XLI, rule 31, and Order XX, rule 4, C. P. C. and it will warrant interference with findings of fact in a second appeal. Perhaps this was in the view of their Lord ships when they observed in Durga Chowdhrani v. Jewahir Singh Choudhry:‑ "The finding of the first Appellate Court upon a question of fact is final if that Court had before it evidence proper for its consideration In support of the findings."

9. Having gone through the evidence on the record, I am in no manner of doubt that the findings given by the trial Court are based on correct appreciation of the evidence logically flowing from it and have been reversed by the District Judge on artificial and untenable grounds. In so far as the appellant's superior right of pre‑emption is concerned her assertion that she was the sitter of Farid Khan vendor went wholly un-rebutted. Again the pedigree‑table placed on the record by Habib Khan respondent to establish his relationship of being a distant kindred of Farid Khan vendor contains a note by the Patwari that on his death Bostan was succeeded by his heirs, namely, his son Farid Khan vendor, his daughter Mst. Bibi Jan appellant and his widow Mst. Hussain Jan. The un-controverted statement of Mst. Bibi Jan coupled with this entry on the pedigree‑table led to the irresistible conclu sion that Mst. Bibi Jan was the sister of Farid Khan vendor and as such her right of pre‑emption was superior to that of Habib Khan respondent. The finding given by the District Judge and upheld in appeal by the High Court on a technical ground was, therefore, based on patent misreading of evidence. Likewise the reversal of the trial Court's finding on issue No. 4 relating to the collusive nature of the earlier suit by Mst. Bibi Jan appellant was based on an untenable and conjectural ground. The mere fact that she being a Pardanasheen lady had not personally contacted her counsel and had chosen to engage hi n through her relative Younas did not justify the inference drawn by the District Judge that the suit had been collusively brought by her for the benefit of Muzaffar Khan vendee. The learned Single Judge, if I may say so with due respect, was also wrong to treat issue No. 4 as purely an issue of fact. The question whether the plaintiffs suit was collusive with the vendee, was a matter of inference to be raised from certain proved or admitted facts on record. There is abundant authority for the view that the inference of/d proper legal effect is necessarily a question of law on which a second appeal is competent.

10. For the foregoing reasons, I would accept the appeal, set aide the judgment of the High Court and remand the case to the High Court for a fresh disposal of the appeal in accordance with law. The parties are left to bear their own costs in this Court. MUHAMMAD GUL, J.‑-I agree. K. B. A. Appeal accepted. Case remanded.