2009 PLP 589 (SCMR)

MUHAMMAD QAIM JAN KHAN, J.

This direct appeal under Article 185(2) sub-clause (d) of the Constitution of Islamic Republic of Pakistan, 1973, is filed against judgment/decree, dated 30-6-2008, passed by a learned Single Judge in Chambers of the Peshawar High Court, Peshawar, in Civil Revision No.658 of"2006 whereby judgments and decrees passed by the two Courts below were set aside and suit of the respondent was decreed on payment of Rs.1,57,500.

2. Brief facts of the case are that Gul Nawaz instituted a suit in the Court of Civil Judge, Takht-e-Nasrati against Gul Rehman for a decree of possession through pre-emption of land measuring 3 Kanals and 7 Marlas situated at village Chowkara, Tehsil Takht-e-Nasrati, District Karak. It was alleged in the plaint that original owner Eid Nawaz sold the suit property to the defendant-vendee Gul Rehman, vide mutation No.5061, attested on 29-5-2003, at a price of Rs.30,000 but in order to defeat the plaintiff's right of pre-emption, entered an inflated amount of Rs.1,57,

000. The plaintiff was informed on 4-6-2003 (Wednesday) at about 1700 hours in his Bethak at village Chowkara by his son Muhammad Nisar Khan and the plaintiff then and there performed Talb -e-Muwathibat and on 5-6-2003 performed Talb-e-Ishhad before two witnesses Muhammad Nisar Khan and Doulat Khan. It was further stated that the petitioner has got superior right of pre-emption on all three grounds while the defendant-vendee has no such qualification. The defendant had asked several times to accept a price of Rs.30,000 and hand over the property to the plaintiff but he refused.

3. The defendant vehemently contested the suit by filing his written statement raising number of legal and factual pleas which were reduced in almost 8 issues apart from relief. The Trial Court after recording pro and contra evidence and after hearing respective counsel for the parties dismissed the suit of the plaintiff on 22-11-2005. The plaintiff preferred appeal in the Court of Additional District Judge, Karak, and the said Court after hearing the learned counsel for the parties and perusing the record dismissed the appeal on 6-5-2006.

4. Aggrieved from these orders of the two Courts, the plaintiff filed Civil Revision No.568 of 2006 in Peshawar High Court Peshawar and a learned Single Judge in Chambers after hearing the parties' counsel and thoroughly going through the record, set aside the judgments of the two Courts below and decreed the suit in favour of the plaintiff on payment of Rs.1,57,500; hence this direct appeal.

5. Counsel for the appellant mainly argued that the first appellate Court should have decided the case in the light of available evidence and arguments advanced by the respective parties' counsel. He submitted that three important witnesses i.e. the plaintiff, his son Muhammad Nisar and one other have recorded detailed statements and the first appellate Court should have thrashed out these statements before arriving at a certain conclusion. He stated that the appellate Court has simply followed the judgment of the trial Court. Regarding the role of first appellate Court, he cited the case of Sailajananda Pandey and another v. Lakhichand Sao and others AIR 1951 Patna

502. He specially referred to paragraph 22 of the judgment and sought for remand of the case to the first appellate Court.

6. Counsel for the respondent argued that no good grounds are available for remand of the case; that the appellant has neither preferred appeal before the District Judge nor cross objections and that there are concurrent findings of fact of two Courts against the appellant. In support of his arguments he cited the cases of Arshad Ameen v. Messrs Swiss Bakery and others, 1993 SCMR 216, Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others, 1997 SCMR 524 and also referred to Order XLI, rule 23, C.P.C.

7. We have heard learned counsel for the parties at length and have also gone through the available record. Revision and appeal are admittedly two different fields. Appeal is the continuation of original suit and the appellate Court has got ample power to thrash out the entire evidence and to scrutinize the available documents in the light of arguments advanced by the respective parties. On the other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in the impugned judgment. A bare perusal of section 115, C.P.C. clearly shows that scope of revision is limited to the above points and for convenience sake said section is reproduced here-under:

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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, the High Court may make such order in the case as it thinks fit: Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court: Provided further that such application shall be made within 90 days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months. (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court."

8. Regarding duties of the Appellate Court, specially the first Appellate Court, learned Narayan, J, in paragraph 22 of judgment in the case of Sailajananda Pandey and another (supra) has clearly stated that "it has been repeatedly pointed out that the legislature has entrusted a very important duty to the first appellate Court. It is for that Court to decide finally all questions of fact on which the disposal of the suit might depend and the appellate Court should not easily agree with the trial Court simply because it was not inclined to take much trouble over the case. If the lower Appellate Court does not examine the facts and the evidence for itself and does not even mention the points which the case raises, it will be certainly failing in its duty". In the instant case, a bare perusal of the judgment of the first appellate Court clearly reflects that it has not given due attention to the available evidence on record. Three important statements of witnesses i.e. Doulat Khan P.W.2, Gul Nawaz Khan, plaintiff, P.W.3 and his son Muhammad Nisar P.W.4 are available on record and the appellate Court should have thrashed statements of these three important witnesses and then should have come to a definite conclusion. The judgment of the appellate Court in hand is not a judgment in its true sense and it is even admitted by the High Court that the first appellate Court has followed the path least resistant. The appellate Court should have applied Order XLI, rule 31, C.P.C. in stricto senso as it has got ample powers under Order XLI, rules 32 and 33, C.P.C. For convenience sake rule 33 of Order XLI is reproduced below:

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33. Power of Court of appeal.

The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." We are convinced that the first appellate Court, which is ultimate Court of facts, has not done its legal duty.

9. Learned counsel for the respondent mainly opposed remand relying on Order XLI, rule 23, C.P.C. and stated that neither the case has been decided on preliminary points nor other facts are available on record to justify the remand of the case. In this regard, he placed reliance on the cases of Arshad Ameen v. Messrs Swiss Bakery and others, 1993 SCMR 216 and Muhammad Dervaish Al-Gilani and 14 others v. Muhammad Sharif and others, 1997 SCMR 524, but the precedent case-law is not applicable to the present case as in these two cases appeal was filed before the High Court and in the instant case revision had been filed before the High Court. The High Court, if it was of the opinion that the first Appellate Court has not adhered to Order XLI, rule 31, C.P.C. should have sent the case back to the appellate Court with some directions and should not have decided the case in revisional jurisdiction as the scope of revision, to some extent, is limited. In the case in hand the appellate Court has given cursory judgment mainly depending on the decision of the trial Court although sufficient material in the shape of evidence was available before it. The judgment of the first appellate Court is itself a big reason for remand of the case.

10. Consequently, while accepting the appeal, we set aside the judgments of the lower Courts and remit the case to the First Appellate Court Additional District Judge, Karak, for writing fresh judgment in the light of available evidence after giving fair opportunity of hearing to the respective parties. There shall be no order as to costs. S.A.K./G-7/SC Case remanded.