2010 PLP 817 (SCMR)

CH. IJAZ AHMED, J.

Necessary facts out of which the present petition arises are that Respondent No.1 filed suit for declaration, perpetual and mandatory injunction, termination and possession in the Court of Civil Judge Kohat against the petitioner and respondent No.2 on 11-7-2008. The salient features as depicted from the plaint are that land under the Madrassa was purchased by plaintiff/respondent No.1 who constructed Madrassa along with three residences by spending a huge amount and then appointed defendant No.1/petitioner as its Muhtamim. That after construction of the Madrassa Muslim female children started religious education in the said Madrassa whereas the plaintiff/respondent No.1 had been maintaining the Madrassa by spending huge amounts. He had been paying the bills of electricity and water as well as making payments to the staff and also bearing the expenses of the students. That on his coming to Pakistan he knew that defendant No.1/petitioner had wrongly entered his name in the Revenue Record on which need to scribe a Wakf deed had arisen and on knowing about illegal interference by the sons of the defendant/petitioner proclamations in the newspapers were also issued. That son of defendant/petitioner had misappropriated the properties of the Madrassa for his own use. While no accounts were maintained in respect of the expenses of the Madrassa on which in a public meeting plaintiff/ respondent No.1 demanded establishment of a trust and with the approval of defendant No.1/petitioner a trust deed was scribed and trustees were appointed but defendant No.1/petitioner denied to vacate Madrassa and the residences and to sign the trust deed. That all acts of defendant No.1/petitioner were against law and Sharia as well as the terms and conditions of Wakf deed because the Madrassa along with the residences could not be used for any personal need by any person that was why removal of defendant No.1/petitioner from his duty as Muhtamim was needed. The plaintiff/respondent No.1 had been residing in London for the last 40 years and had been paying Rs.12,50,000 per year to defendant No.1/petitioner for the purpose of running the affairs of the Madrassa but on knowing that defendant No.1/petitioner along with his married sons and sons in law were residing in the residences situated in Madrassa, the plaintiff/respondent No.1 raised objection and sought explanation owing to which another trust deed was scribed and trustees were appointed with the approval of defendant No.1/petitioner but he again denied to sign the same compelling the plaintiff/respondent No. 1 to file suit for declaration, perpetual and mandatory injunction, termination and possession. The learned trial Court after framing issues and recording of the evidence decreed the suit vide judgment and decree dated 29-6-2009 with no order as to costs. Petitioner being aggrieved filed appeal in the Court of Additional District Judge, Kohat on 14-7-2009 which was dismissed. Thereafter the petitioner filed Civil Revision No.1155 of 2009 with an application ad interim relief which was dismissed by the learned High Court vide judgment dated 23-11-2009. Hence the present petition.

2. The learned counsel for the petitioner submits as under:

(i) That all the Courts below had decided the case against the petitioner by misreading and non-reading of the record. (ii) That respondent No.1/plaintiff had failed to bring on record sufficient evidence to prove that construction over the premises in question was constructed by him. (iii) That respondent No.1/plaintiff categorically admitted that he had been sending the money to Abdullah but not to the petitioner in spite of such evidence the trial Court was erred to decree the suit against the petitioner and this error was not rectified by the first appellate Court as well revisional Court. (iv) Learned High Court had also erred in law to issue direction for constituting a committee to work out misappropriation and to make recovery from the petitioner. (v) The learned High Court erred in law to assume the jurisdiction to give the aforesaid direction while exercising power under section 115, C.P.C. particularly when there was no specific allegation of misappropriation alleged by him in the plaint.

3. The learned counsel for the respondents has supported the impugned judgment.

4. We have given our anxious consideration to the contentions of the learned counsel and perused the record. It is an fact that the trial Court had decreed the suit after appraisal of the evidence by rendering its own finding on all the issued in accordance with law and thereafter decreed the suit-. The first appellate Court had reappraisal of the evidence on record and then dismissed the appeal. Revisional Court had also re-examined all the record and dismissed the revision petition with certain observations on the basis of the evidence and keeping in view the controversy arising between the parties particularly respondent No.1/plaintiff had sent money for a pious purpose and petitioner had committed breach of trust due to which the learned High Court was compelled by the circumstances to constitute an inquiry committee which would be assisted by a senior auditor of the Local Fund Audit or District Fund Audit Department to work out the total amount of money digested by the petitioner/defendant as observed in para 11 of the impugned judgment coupled with the fact that all the Courts below had given finding of fact that the religious education would be imparted free of any charges/fee to the female students whereas petitioner had started receiving Rs.700 and then Rs.1000 per month from each student in spite of the fact that he was paid on monthly basis handsome amount by respondent No.1 to feed the students and to pay salary to the teachers. Keeping in view the greediness of the petitioner the learned High Court had given aforesaid observation against the petitioner. It is also settled principle of law that findings on the question of fact or law, however, erroneous the same may be, recorded by any Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction under section 115, C.P.C. unless such finding suffers from jurisdictional defect, illegality or material irregularity. With reference to section 115, C.P.C. the Privy Council has laid the following principle in N.S. Venkatagiri Ayyangar's case PLD 1949 PC 26:

"This section empowers the High Court to satisfy itself upon three matters:

(a) that the order of the subordinate Courts is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law."

5. No jurisdictional defect as of course has been pointed out in this case and similarly no illegality or infirmity in the impugned judgment has been alleged by the counsel of the petitioner before the High Court as is evident from the contents of the impugned judgment.

6. We are perfectly conscious that as ultimate Court in the land, this Court, as a rule, should give due weight and consideration to the opinion of the Courts below and in particularly to the opinion of the Court of first instance which had the advantage of hearing the parties, witnesses and watching their demeanor. Generally this Court does not interfere with the findings of fact reached by the primary Courts or a High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of the evidence. This would be notwithstanding that a different view might also be possible.

7. In the case in hand, the learned counsel of the petitioner failed to pint out any piece of evidence which was misread or non-read by the Courts below. The petitioner has also raised plea that learned High Court had no jurisdiction to constitute a committee to probe into the matter regarding misappropriation of the funds. It is settled principle of law that where substantial justice has been done this Court does not interfere while exercising power under Article 185(3) of the Constitution. It is also settled principle of law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. In view of the conduct of the petitioner we are not inclined to exercise our discretion in favour of the petitioner as law laid down by this Court in various pronouncements. See Rana Muhammad Arshad's case 1998 SCMR 1462, Nawabzada Raunaq Ali's case PLD 1973 SC 236, Haji Saifullah's case PLD 1989 SC 166 and G.M. Malik's case 1990 CLC 1783.

8. In view of what has been discussed above this petition has no force and the same is dismissed. Leave refused. M.H./M-11/SC Petition dismissed.