2008 PLP 259 (MLD)

MIAN HAMID FAROOQ, J.

Nishan Muhammad, petitioner/defendant, through the filing of the present revision petition, has called in question judgment and decree, dated 16-10-2002, whereby, the learned Addl. District Judge dismissed petitioner's appeal and maintained the judgment and decree, dated 29-7-2002, passed by the learned Civil Judge, through which; he partially decreed the suit for the recovery of Rs.15,000 and dismissed the suit to the extent of Rs.9000 filed by the respondent/plaintiff.

2. Facts relevant for the decision of the present petition are that the respondent filed "a suit for recovery of Rs.24,000, against the petitioner, contending therein that father of the parties, namely, Sardar Muhammad, was the owner of certain land, who died in the year, 1962 and although the respondent had a share in the said land to the extent of 1/11, yet the petitioner, who was in occupation of the total land, neither delivered the possession of the land to her nor the mesne profits were paid to her. Subsequently, as a result of litigation, the respondent was able to obtain the possession of the land, which fell to her share and thereafter she instituted the aforenoted suit, claiming a sum of Rs.15,000 as mesne profits and Rs.9000, as expenses incurred on litigation. The suit was contested by the petitioner by way of filing the written statement, inter alia, pleading that the respondent obtained the possession of her share in the land as a result of a compromise. The learned trial Court framed the necessary issues, recorded the evidence of the parties and ultimately, decreed respondent's suit to the extent of mesne profits of Rs.15,000, while the suit regarding the expenses allegedly incurred on litigation of Rs.9000 was dismissed, vide judgment and decree, dated 29-7-2000. Feeling aggrieved, the petitioner filed an appeal before the learned appellate forum, but without any success, as his appeal was dismissed by the learned Addl. District Judge, vide judgment and decree, dated 16-10-2002, hence the present revision petition.

3. The learned counsel for the petitioner has contended that although no issue regarding the recovery of mesne profits was framed, yet both the Courts have decreed the suit basing their findings on issue No.4, holding therein that the respondent is entitled for the mesne profits. He has added that as the proper issues were not framed, therefore, the impugned judgments and decrees are not sustainable in law. Conversely, the learned counsel for the respondent has submitted that both the parties led the evidence on the point question of mesne profits, that the petitioner did not raise the said plea before the learned appellate forum and that the concurrent findings of facts are not to be disturbed by this Court in exercise of its revisional jurisdiction.

4. The core question, which arises for determination, is as to whether the Court can give findings on a material proposition and points of controversy, between the parties, without framing a specific issue, when the parties had in fact led the evidence on the said material proposition of law. Upon the examination of the available record, I find that though no specific issue on the question of mesne profits was framed, however, the parties were allowed to lead evidence on this un framed issue. After scanning through the evidence of the parties, it has become clear that the parties adduced many witnesses on the material proposition of mesne profits, because that was the main controversy before the learned trial Court. It is apparent that the petitioner produced as many witnesses as he desired to produce and at no stage, the learned trial Court prevented the petitioner from adducing the evidence regarding the mesne profits. The Hon'ble Supreme Court of Pakistan, in a case reported as Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018), while relying upon previously decided case by the Supreme Court of Pakistan reported as The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others (PLD 1971 SC 82), has declared the law that even if the specific issues are not framed, but allegations made in the plaint are challenged in the written statement and the Court has, allowed evidence to be led, then the decision rendered without framing of the specific issues is not illegal.

5. The proposition of law decided in the aforenoted case of Fazal Muhammad Bhatti, is fully applicable in the present case. As noted above, the parties, of their own free will, led the evidence on the specific question of mesne profits and now the petitioner cannot be permitted to agitate that the decision rendered, without framing of issues, is illegal. Being guided by aforesaid case of Fazal Muhammad Bhatti (Supra), I am constrained to hold that both the Courts, while rendering the impugned judgments, did not commit any illegality or material irregularity warranting the interference by this Court in exercise of its revisional jurisdiction.

6. Additionally, I feel that the issues were framed in the presence of the parties and their learned counsel, but throughout the pendency of the proceedings, before both the Courts, the petitioner did not file any application for framing of additional issue or re-casting of the issues. If the petitioner was not satisfied with the framing of issues, he could have, at the first opportunity, filed an application under Order XIV Rule 2, C.P.C. for framing of additional issues, but the said opportunity was not availed by the petitioner before the learned trial Court, inasmuch no such application was even tiled by the learned counsel. At the stage of revision, the petitioner cannot be allowed to plead that on account of non-framing of issues, the concurrent findings of facts may be set aside.

7. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610.

8. The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of mis-reading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.

9. It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under section 115, C.P.C. Reliance is placed on Abdul Rashim and another v. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zamand and 5 others v. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 SC 293).

10. Upshot of the above discussion is that the present revision petition is devoid of merits, thus, the same is dismissed with no order as to costs. M.H./N-332/L Revision dismissed.