IN THE HIGH COURT OF SINDH AT KARACHI.

 

II-Appeal No.14 of 2015

 

                             Present:  Mr. Justice Fahim Ahmed Siddiqui

 

 

1.   For hearing of CMA No.2086/2015(Stay)

2.   For hearing of Main Case.

 

 

Appellant              :              Col. (Retd) Mir Nawaz through his

      Counsel Ms. Nayyar Sabir Haider

 

Respondent No.1   :             Muhammad Haroon through his

              Counsel Mr. Yousuf Khan Kattak

 

Respondent No.3    :           Defence Officer Housing Authority

through its Counsel Mr. Ejaz Khan   Khattak

 

Date of haring:       :            07.12.2016   

 

Date of                 

Announcement :                        12.2016

         

J U D G M E N T

 

 

FAHIM AHMED SIDDIQUI, J. By preferring this Second Appeal under section 100 CPC, the appellant has assailed the legality and propriety of judgment and decree dated 16-01-2015 passed by Additional District Judge VII, Karachi South, whereby Civil Appeal No.245 of 2013 preferred by appellant was dismissed and judgment and decree passed by the learned Senior Civil Judge-V, Karachi South in Suit No. 47 of 2012 was maintained.

 

2.              Succinctly, the facts of the case are that the respondent No. 1 filed suit no. 47 of 2012 for specific performance, declaration and permanent injunction against the appellant in respect of two plots bearing plot no. S-51, 16th ‘A’ Street (120 square yards) and plot no.53, 17th ‘B’ Street (100 square yards) of phase VIII, DHA, Karachi. Per stance taken by DHA in WS, these plots were subsequently readjusted as plot no. S-35, Iqbal Lane 11, phase VIII and plot no. S-1, Iqbal Lane-5, phase VIII respectively. According to respondent No.1, he purchased those plots from appellant through respondent No. 2 against the sale consideration of Rs. 42,00,000/- each totalling Rs. 84,00,000/- through Sale Agreement dated 15-06-2011. Respondent No. 1 paid an amount of Rs. 50,00,000/- through cheque no. CD-0365390/- drawn on Bank Al-Falah Ltd, Markaz Branch, Islamabad and the said cheque was encashed by the appellant. As per agreement appellant was required to execute sale deed on or before 15th June 2011 but allegedly respondent avoided to do so, hence the suit was filed before learned trail Court. In his plaint, the respondent No. 1 sought the relief of specific performance of contract regarding the suit properties with declaration of ownership. He also sought permanent injunction and directions to respondent No. 2 (attorney of appellant) to restrain from creating third party interest in respect of suit properties etc.

 

3.              Ms Nayyer Sabir advocate for appellant address the court at length. She submitted that every suit is required to be decided on merits and it is the demand of merits that the evidence of appellant should be recorded. As appellant evidence was not recorded by the trial court, therefore, propriety demands that the suit may be remanded back to trial court for retrial. She submitted that the son of appellant was missing for some time due to which, he mentally became upset and left abroad for treatment. After treatment when his health was restored, he came to know that his side was closed and he was deprived to take part in the proceedings pending before the trial Court. She also submitted that the trial Court has given weight to a dishonoured cheque but could not appreciate that the appellant was acquitted from criminal charge regarding the same cheque. She further submitted that at the time of disposal of first appeal, she was not in locus and these important facts were not brought into the knowledge of first appellate Court.

 

 

4.              Mr. Yousuf Khan Khattak, advocate for respondent No. 1 while opposing the instant appeal submitted that there are concurrent findings of the two Courts below, therefore. the same cannot be upset. According to him, narrative of missing of son of appellant was placed before the trial Court and first appellate Court and the same is not convincing as the incident of missing of the son of appellant was taken place in the year 2002 and not in the year 2012 when the suit was proceeded. He submitted that the ground of "mental upset" and "treatment abroad" are afterthought and the same cannot be considered. According to him, after judgement and decree of the suit, the decree was executed by the trial court and the suit properties have already been mutated in the name of respondent no.1.

 

5.              None appeared for respondent No. 2 before this court as well before the two subordinate courts. Mr. Ejaz Khatak advocate for respondent No. 3 (DHA) submitted that respondent No. 3 is proforma party of the litigation and the property has already been mutated by them on the basis of decree of trial court and they are ready to fulfil any further direction issued by this Court.

 

6.              As it is a Second Appeal, therefore, I feel it right to discuss about the scope of a second appeal before the High Court. I consider that there is some force in the arguments of the learned counsel for respondent No. 1 that concurrent findings of fact cannot be upset by this Court while exercising jurisdiction under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’), has some force, but it is not a universal rule. In the case reported as Muhammad Khan v. Rasul Bib (PLD 2003 SC 676), the Apex Court laid down the principle as under:-

 

"Ordinarily concurrent findings recorded by the courts below could not be interfered with by the High Court while exercising jurisdiction in the second appeal howsoever erroneous the findings may be, unless such findings had been arrived at by the courts below either by ignoring a piece of evidence on record or through perverse appreciation of evidence. High Court, in the present case, was justified in interfering with concurrent findings, after noticing that the judgments of the courts below suffer from acute miscarriage of evidence and exclusive of material available on the record, resulting in gross miscarriage of justice."

 

7.              It is now well settled that the concurrent findings of the Courts below ordinarily could not be disturbed by this court under Section 100 of CPC unless it is originated from improper and perverse appreciation of the evidence on record. In the case of Khushi Muhammad v. Liaquat Ali (PLD 2002 SC 581), the Honourable Supreme Court has observed that concurrent judgments were obtained without proving the execution of gift deed properly and upheld the findings of the High Court.

 

8.              Now I am diverting to the factual aspect of the case to see if there exist ground for interference by this court in the present case or otherwise. It transpired from the record that the appellant (defendant in the suit) has filed WS before the trial court but after filing the WS, neither the appellant nor his counsel turned up. Learned trial court then obliged to proceed the suit and respondent No.1 entered in the witness box in support of his claim. However, on account of non-appearance of the appellant and his counsel, no cross was conducted to challenge the stance taken by the respondent no.1 and his witness in their affidavits in evidence which remained unchallenged. It is also transpired from the available records that as no one appeared from or on behalf of appellant before the trial court, therefore, the side of appellant was closed. After some time, the appellant appeared before the trial court and filed application for reopening of his side which was allowed on the no objection extended by the respondent no.1, but he again did not appear before the trial court to participate in the proceedings. Ultimately, the suit of the respondent no.1 was decreed.

 

9.              The First Appellate Court has discussed all the material in detail. From the bare perusal of the judgment of First Appellate Court, it is crystal clear that the ground of health of the appellant was agitated before the two forum below but same were not considered for want of tangible evidence. It is a fact that the payment of Rs. 5,00,000/- by the respondent no. 1 to appellant is established through oral and documentary evidence before the trial court. It is further established before the trial court that the aforesaid amount was paid to plaintiff through cross cheque. Even, it is admitted by the appellant in his WS that the said amount was received by him. The deal between the parties is also admitted in WS as well as reply to legal notice by the appellant. As far as absence of the appellant during pendency of suit is concerned, it does not improve the case of appellant as when appellant had engaged a counsel to defend him, then it is the duty of appellant to make beforehand arrangements for defending him in the litigation while proceeding abroad during pendency of the suit. On merit, the trial court has decreed the suit of the respondent No.1 on the basis of available evidence in the shape of oral evidence of respondent and his witness as well as by overwhelming documentary evidence.

 

10.           The scope of Second Appeal is a limited to the three grounds mentioned in Section 100 of CPC. These ground are mentioned in the language of very statute as under:-

 

"100. Second appeal. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:-

(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;

(c)        a substantial error or defect in the procedure provided by this Code 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 the merits.

(2)       ………………………………………………………………”

 

11.           None of the aforesaid grounds in favour of appellant is available. The learned counsel for the appellant has not pointed out any misreading or non-reading of evidence nor he has been able to point out any legal lacuna in the findings of the trial court or first appellate court. She remained fail to point out anything contrary to law or to some usage having the force of law in the appellate judgments and decrees. She could not point out failure of the appellate court to determine any material issue of law. Her contention for remanding the case cannot be appreciated when on merit, the trial court has decreed the suits of the respondents on the basis of sufficient and convincing evidence.

 

The instant Appeal stands dismissed in the above terms.

 

 

JUDGE