IN THE HONOURABLE HIGH COURT OF SINDH AT KARACHI

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Civil Rev. Appln. S-15 of 2021 & Zulfiqar Kamboh

Civil Rev. Appln. S-16 of 2021 vs. Abdul Jabbar & Others.

For the Applicant : Mr. Inayatullah Morio, Advocate

Date of hearing : 20.01.2022

Date of announcement : 20.01.2022

ORDER

Agha Faisal, J. These two civil revision applications have impugned judgments dated 12.11.2020, whereby the pertinent judgment and decrees impugned had been set-aside and the matter was remanded back to the learned trial court for deciding afresh in accordance with law. These matters are correlated and so, per counsel request, were heard conjunctively and shall be determined vide this common order. The findings of the learned appellate court in the respective impugned judgments are reproduced herein below.

"14. Be that as it may, while I have closely gone through the consolidated issues so framed by the learned trial court and found that the first issue is pertained to purchase of property question. In order to see as to whether the learned trial court had properly discussed the said issue In the light of oral as well as documentary evidence so adduced by the concerned parties or not. In this context, I have scrutinized the findings of issue No.01 and found that the learned trial court had finally answered it in affirmative. Since the learned trial court had answered-the issue No.01 in affirmative, under such a situation it could be said that the appellant had purchased the property in question from respondent. Anyhow, the learned trial court in issue No.02 at the opening paras had opined that the appellant had failed to have proved to have purchased property in question from Zulfiqar Kamboh. So much so issue No.03 is pertained to possession of the property in question and permission regarding installation of gas meter had also been answered in affirmative. Therefore under such circumstances, it can safely and certainly be said that the learned trial court was not confirmed on its own findings. As such it becomes crystal clear that the impugned consolidated judgment and decree are the result of misreading and non-reading of the oral as well as documentary evidence. As such the impugned consolidated judgment and decree cannot be sustained at all and the same requires interference of this court. It is well settled principle of law that each and every issue/case must be decided in accordance with law on merits by considering the oral as well as documentary evidence of the parties.

15. I have also carefully gone through the reported case laws so relied upon by the learned counsel for the respondent and found that the facts and circumstances so mentioned therein are distinguishable from the facts and circumstances of the case in hand. The net result of the discussion is that the appellant has succeeded in making out a case for remand. Consequently, the point No.01 stands answered in affirmative.

Point No.02.

16. In view of above discussion on the point No.01 and result there to, since it has come on record that the impugned consolidated judgment and decree are the result of misreading and non-reading of the evidence of the parties and the same are suffering from illegalities and irregularities as pointed out hereinabove. Therefore under such circumstances, the same cannot be sustained under the law and facts at all. Accordingly, the appeal in hand merits consideration and the same stands allowed and thereby the impugned consolidated judgment and decree dated 24-11-2018 are hereby set aside. The case is hereby remanded back to the learned trial court for deciding the same in accordance with law by providing fair opportunities to the parties concerned of being heard. The parties are at liberty to lead their further evidence if they desire so. The parties shall bear their own costs. Let decree be drawn accordingly. Copy of the judgment and decree together with Record and Proceedings in F.C Suit No.155/2016 be sent to the learned trial court for compliance. It may be noted that another civil appeal being No.05-A/2019 arising out of same impugned consolidated judgment and decree has also been allowed vide judgment and decree dated 12-11-2020 and the case had also been remanded back to learned trial court for deciding the same on merits in accordance with law. The detailed separate judgment is lying irrelevant appeal file."

"15. Be that as it may, while I have closely gone through the consolidated issues so framed by the learned trial court and found that the first issue is pertained to purchase of property in question. In order to see as to whether the learned trial court had properly discussed the said issue in the light of oral as well as documentary evidence so adduced by the concerned parties or not.in this context, I have scrutinized the findings of issue No.1 and found that the learned trial court had finally answered it in affirmative. Since the learned trial court had answered the issue No.1 in affirmative, under such a situation it could be said that the appellant had purchased the property in question from respondent No.1 (Zulfiqar). Anyhow, the learned trial court in issue No.2 at the opening paras had opined that the appellant had failed to have proved to have purchased property in question from Zulfiqar Kamboh. So much so issue No. 03 is pertained to possession of the property in question and permission regarding installation of gas meter had also been answered in affirmative. Therefore under such circumstances, it can safely and certainly be said that the learned trial court was not confirmed on its own findings. As such it becomes crystal clear that the impugned consolidated judgment and decree are the result of misreading and non-reading of the oral as well as documentary evidence. As such the impugned consolidated judgment and decree cannot be sustained at all and the same requires interference of this court. It is well settled principle of law that each and every issue/case must be decided in accordance with law on merits by considering the oral as well as documentary evidence of the parties.

16. I have also carefully gone through the reported case laws so relied upon by the learned counsel for the contesting respondent No.1 and found that the facts and circumstances so mentioned therein are distinguishable from the facts and circumstances of the case in hand. The net result of the discussion is that the appellant has succeeded in making outa case for remand. Consequently, the point No.1 stands answered in affirmative.

Point No.02

17. In view of above discussion on the point No.1 and result thereof, since it has come on record that the impugned consolidated judgment and decree are the result of misreading and non-reading of the evidence of the parties and the same are suffering from illegalities and irregularities as pointed out hereinabove. Therefore under such circumstances, the same cannot be sustained under the law and facts at all. Accordingly, the appeal in hand merits consideration and the same stands allowed and thereby the impugned consolidated judgment and decree dated 24-11-2018 are hereby set aside. The case is hereby remanded back to the learned trial court for deciding the same in accordance with law by providing fair opportunities to the parties concerned of being heard. The parties are at liberty to lead their further evidence if they desire so. The parties shall bear their own costs. Let decree be drawn accordingly. Copy of the judgment and decree together with Record and Proceedings in F.C Suit No.35/2015 be sent to the learned trial court for compliance. It may be noted that another civil appeal being No.06-A/2019 arising out of same impugned consolidated judgment and decree has also been allowed vide judgment and decree dated 12-11-2020 and the case had also been remanded back to learned trial court for deciding the same on merits in accordance with law. The detailed separate judgment is lying irrelevant appeal file."

2. Per learned counsel, the appellate court was unable to appreciate the evidence / findings in its proper respective, therefore, required this Court to conduct an appraisal in such regard. Prima facie the same does not fall within the ambit of revisionary jurisdiction.

3. Heard and perused. Learned counsel for the applicant has impugned the findings, however, has remained unable to identify any infirmity with respect to the judgments meriting interference in the revision jurisdiction of this court under Section 115 C.P.C.

4. The judgments impugned have merely remanded the respective cases for determination afresh in order to meet the ends of justice, hence, no case appears to be manifest to consider the same as being adverse or prejudicial to the lawful interests of either party.

5. It is trite law[1] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.

6. This Court has carefully considered the contentions of the applicant and has noted the inability of the learned counsel to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned order is either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity.

7. It is the considered view of this court that the applicant has remained unable to demonstrate any infirmity with the respective judgments meriting interference in revision under Section 115 C.P.C, therefore, these revisions are hereby dismissed.

JUDGE

[1] Per Faqir Muhammad Khokhar J. in Naheed Nusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.