2010 PLP 1868 (SCMR)

RAJA FAYYAZ AHMED, J.

The learned Advocate Supreme Court for the petitioner has been heard. The impugned judgment and the documents available on the paper-book have been perused carefully and minutely with his a ssistance.

2. The suit instituted by the respondent for specific performance of agreement was decreed by the learned trial Court, which judgment and decree has been maintained by the learned appellate Court vide judgment and decree dated 15-11-2007. Against both these judgments and decrees, Regular Second Appeal No. 8 of 2008 was preferred by the petitioner before the learned High Court of Sindh, Karachi, dismissed vide judgment impugned herein.

3. The learned counsel for the petitioner contended that after passing of the decree in favour of the respondent by the learned trial Court, the decree-holder failed to deposit the balance amount of 'the transaction within the stipulated period and it is not known as to how the period for the deposit of amount as ordered by the learned Executing Court was extended and that physical possession of the suit property still remains with the petitioner. The learned counsel submitted that the petitioner was technically knocked out and has been non-suited on the similar ground by the learned High Court. In support of his contention, he placed reliance on the judgment of Muhammad Sharif v. Mst. Fajji alias Phaji Begum through LRs and another (1993 SCMR 2485).

4. We asked the learned counsel as to what were the arguments specifically urged before the learned High Court during the hearing of the regular second appeal but he failed to specifically refer the law points urged during the course of arguments before the learned High Court. However, perusal of para No.6 of the impugned judgment indicates that the only ground urged before the learned High Court was that the learned Courts below did not strictly adhere to the provisions of the Order XLI, Rule 31, C.P.C., which contention has been properly and correctly addressed to by the learned High Court in the impugned judgment. It appears from the perusal of the impugned judgment and that by the first appellate Court, in substance compliance of the provisions of Order XLI Rule 31, C.P.C. was made and it is not always required that in each case the appellate Court would deal with each of the issue and to resolve the same separately in the light of the evidence available on the record unless the same had caused any serious violation of the law or resulted into a grave miscarriage of justice to any of the parties to the suit.

5. In the instant case, the findings of facts recorded by the learned trial Court on the issues were maintained by the learned first Appellate Court, therefore, unless the findings are reversed by the first Court of appeal which is not so in the present case, decision on each issue may not to be distinctly and essentially recorded, provided in substance compliance of the provisions of the Order XLI, Rule 31, C.P.C. has been made. The case-law cited by the learned counsel in view of his contention before the learned High Court, is quite distinguishable and is, therefore, not relevant. In our considered opinion, the impugned judgment does not suffer from any impropriety or illegality, so as to call for, any interference by this Court.

6. Consequently, this Civil Petition having no substance is dismissed. Leave refused. M.H./M-75/SC Petition dismissed.