P L D 2007 Peshawar 14 (PLP)

IJAZ-UL-HASSAN KHAN, J.

Shortly narrated the facts leading to the filing of instant civil revision are, that Faqir Khan, plaintiff brought suit against Ghulam Samdani and others, defendants for a declaration-cum-permanent injunction to the effect that plaintiff is owner in suit Khasra number and also in possession to the extent of his specific share, whereas the defendants, having disposed of their shares by way of sale or construction of houses etc., have no justification to interfere with the rights of the plaintiff.

2. The defendants did not appear in Court and they were held ex 'parte vide order dated 27-4-2000 and suit was decreed as ex parte on 9-2-2001. An application was moved for setting aside ex parte decree, which was allowed. During the pendency of the suit, one Ghaus Muhammad Khan tiled an application for impleadment in the suit as necessary party. The application was accepted on 29-4-2002 and amended plaint was submitted on 13-6-2002. Written statement was filed on 29-6-2002. In view of the pleadings of the parties, learned trial Judge formulated as many as 10 issues. After recording such evidence as the parties wished to adduce, -suit was dismissed by trial Judge, vide judgment and decree dated 24-1-2004. An appeal was preferred there-against, which was allowed by learned Additional District Judge, Kohat, vide judgment dated 12-7-2005. The impugned and decree was set aside and a preliminary decree for partition of suit property was passed in favour of the plaintiff against the defendant. Ghulam Samdani and his brother Ghaus Muhammad Khan petitioners, feeling aggrieved have filed instant civil revision, challenging the impugned judgment and decree dated 12-7-2005. The prime contention of Mr. Muhammad Jehangir Khan, Advocate, learned counsel for the petitioners is that the impugned judgment and decree is laconic and suffers from the vice of misreading and non-reading of evidence, hence resulting in erroneous conclusions. The learned counsel maintained that appellate Court failed to exercise its jurisdiction properly and in accordance with law and reversed a detailed and well-reasoned judgment of trial Court without assigning any reason. The learned counsel also contended that appellate Court exceeded its lawful jurisdiction by introducing partition of the property on its own motion, whereas no such prayer was made by either of the parties. In the last limb of arguments, it was contended that appellant Court failed to deliver its issue-wise findings and the requirements of Order 41, Rule 31, C.P.C. had not been complied with.

4. Mr. Hussainuddin Khattak, Advocate for the respondent, on the other hand, supported impugned judgment wholeheartedly, maintaining that the material on record has been properly appreciated in its true perspective and judgment and decree of the trial Court has been reversed for valid reasons.

5. Arguments of learned counsel for the parties have been heard in the light of the material on record.

6. A perusal of the impugned judgment would reveal that plausible reasons have been given in support of the conclusion arrived at and no case of misreading or non-reading of evidence has been made out. The learned appellate Court has embarked upon the issues involved in the case, appreciated the evidence on record in its true perspective and has reached to the proper conclusion which is not open to exception. It was on consideration of the evidence in its totality that a finding was recorded. There is no misreading or non-reading of any material piece of evidence, which could render the findings of the appellate Court unworthy or illegal. The appellate Judge has duly taken into consideration all the material facts of the case and after having done so, has recorded a detailed and well-reasoned judgment, which of course, is the result of proper application of mind. Although the learned counsel for the petitioners has contended that the impugned judgment suffers A from misreading and non-reading of evidence, yet when asked to explain as to which portion of the evidence has been misread or non-read by the appellant Court, the learned counsel despite his best efforts could not point out any such misreading or non-reading.

7. Attending to the objection raised by learned counsel for the petitioners regarding non-compliance of requirements of Order XLI, rule 31, C.P.C. no doubt, it is true that the characteristic of a good judgment is that it must be self-evident and self-explanatory, in other words, it must contain reasons that justify conclusions arrived at and these reasons should be such that a disinterested reader can find them convincing at least reasonable. In the instant case, all the legal formalities had been duly complied with and no prejudice seems to have been caused to the petitioners. The judgments of the appellate Court has been recorded keeping in view the provisions contained in Order XLI, Rule 31, C.P.C.

8. The contention that appellate Court had failed to record judgment issue- wise and separately in terms of the requirements of Order XX, Rule 5, C.P.C. and thus, the case is fit for remand in terms of Order XLI, Rule 25, thereof the submission is not tenable. Order XX, Rule 5, C.P.C. is evidently applicable to the original Court, which hears a civil suit. As regards appellate Court, the requirement of recording finding issue-wise is not mandatory. It is sufficient for the appellate c Court to deal with all the issues as are material for disposal of the controversy excepting those abandoned by the appellant. An appellate Court recording its findings on the points raised before it, without discussing the issues separately cannot be said to have committed any illegality or error as held by this Court in Naitnat Khan and others v. Hamzullah Khan and others 2006 CLC 125.

9. In view the above, I find that neither any non-reading or mis?reading of evidence nor any material irregularity nor any jurisdictional defect could be pointed out to justify interference. The civil revision is devoid of force. The same is dismissed with no order as to cost. S.M.B./176/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.