2008 PLP 190 (SCMR)

RANA BHAGWANDAS, J.

Petitioner seeks leave to appeal against Sindh High Court judgment dated 25-5-2005 whereby concurrent findings of fact arising out of a suit for specific performance of contract have been upheld and second appeal of the petitioner dismissed.

2. Parties entered into an agreement of sale and purchase dated 15-2-1996 in respect of 0.50 Paisa share in the suit-land for a consideration of Rs.6,75,000 out of which a sum of Rs.1,00,000 was paid to the petitioner as earnest money. The balance amount was payable at the time of execution of a registered conveyance deed on 15-5-1996. Remaining portion of land along with Survey No.337 was statedly leased out to the respondent and his brother Muhammad Hanif on 10-7-1994 as such the respondent was in possession of the entire suit-land at the time of the execution of the agreement. As the petitioner failed to perform his part of contract, respondent was obliged to file a suit for specific performance, which after hot contest on facts, was decreed by the trial Court vide judgment dated 9-1-2001. First appeal before an learned Additional District Judge having failed vide judgment and decree dated 5-4-2005 petitioner tried his luck in second appeal before the Sindh High Court, Hyderabad Circuit Bench but without any redress, hence this petition for leave to appeal.

3. We have heard Mr. Umer Farooq 'Khan, learned Advocate Supreme Court for the petitioner at quite some length and examined the relevant record as well as the impugned judgment. Learned counsel attempted to argue that the lease of land in favour of the petitioner, had come to an end but as this question was neither agitated nor pleaded at the hearing of the appeal before the High Court, we are not inclined to entertain the same and dilate upon it for the first time. Suffice it to observe, findings of fact recorded by two Courts below and affirmed by High Court in second appeal do no suffer from any illegality, infirmity, misreading of record or misconception of law.

4. It is well settled that a second appeal to the High Court shall lie from every decree passed in appeal by any Court subordinate to a High Court on the grounds: (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by Civil Procedure Code, 1908 or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits.

5. From the aforesaid discussion, it would, thus, appear that the scope of second appeal is restricted and limited to the grounds prescribed by law and second appellate Court is not expected to enter into re-appraisal of evidence or to strike down concurrent findings of fact unless the case falls within any of the exceptions described hereinabove. There is, thus, no ground for interference by this Court in the exercise of Constitutional jurisdiction.

6. Resultantly, this petition fails and is hereby dismissed. H.B.T./N-27/SC Petition refused.