Civil Revision in Pakistani law

Section 115, Code of Civil Procedure, 1908, Civil Revision

  1. Revision. [(I) The High Court may call for the record of any case which has been decided by any Court subordinate] to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a)       To have exercised a jurisdiction not vested in it by law, or

(b)       To have failed to exercise a jurisdiction so vested, or

(c)       To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:

 

2[Provided that where a person makes an application under this sub-section he shall, in support of such application furnish copies of the pleadings, documents and Order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court :]

 

3[Provided further that such application shall be made within ninety days of the decision of the subordinate Court] [which shall provide a copy of such decision within three days thereof and the High-Court shall dispose of such application within six months,

 

4[(2)    The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3)       If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4)       No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court].

 

Legal Amendments

  1. Re-numbered by ordinance No. 12 of 1972.
  2. Added by S. 13 of ordinance X of 1980.
  3. Added by Act Vi of 1992, and Act 14 of 1994.
  4. Added by Ordinance Xii of 1972, and Act 14 of 1994.

 

  1. Absence of Petitioner: – Court, had two options, either to dismiss revision for non-prosecution or to take agony of going through record of Courts below–Courts by taking second option decided revision on merits–Contention that revision petition decided in absence of petitioner should be presumed to have been dismissed in default and should be restored was repelled. PLJ 2001 Peshawar 62
  2. Additional Evidence:- Appellate Court while admitting such evidence, did not take into account that there did not exist any case in terms of O.XLI, R.27, C.P.C: -Express provisions of S.99, Civil Procedure Code, 1908, were also disregarded in setting aside decree of Trial Court on assumed deficiency of court-fee whereby neither decision on merits made by Trial Court ‘ was affected, nor any question of jurisdiction of the Court got involved on that count–Case was remanded to Appellate Court for disposal afresh in accordance with law. 1993 M L D 30 Petitioner’s (defendant) application to produce additional evidence was dismissed by Appellate Court–Validity–Petitioners in suit for possession against them wanted to produce account books to show that respondent (plaintiff) had been purchasing some articles on credit from shops being run by them–Appellate Court had correctly concluded that even if such fact was taken to be true, petitioners would have right to file suit for recovery money against respondent but the same amount could not be deducted from rent of property which petitioners owed to respondent in absence of contract for the same–Said books of account being in possession of petitioners throughout, they having failed to produce the same in evidence before Trial Court, could not produce the same at revision stage–Such books of account, however, do not bear signatures of respondent, therefore, the same if produced would not serve any purpose–Petitioners also sought to produce through the same application deed of compromise but the same having not been referred in their written statement and having not been produced at trial stage, could not be produced at present stage before High Court—Courts below had arrived at correct conclusions on the basis of facts found and established through evidence PLJ 2000 Lahore 2261 Plaintiffs application for production of additional evidence was declined by Appellate Court–Legality–Additional evidence in the shape of a letter which plaintiffs intended to produce as additional evidence was just a letter of recommendation by an official of agriculture that petitioner should be allotted 2 Marla plot at specified rate–Tenancy of plaintiff over plot in question, was not proved by that letter–Judgment and decree of Appellate Court being based on sound and cogent reasoning interference therein was not warranted in revisional jurisdiction. PLJ 2002 Lahore 163 Appellate Court refused to allow plaintiff to produce additional evidence viz. copy of mutation–Plaintiff although had not based his claim on that document yet he claimed ownership of land in question from specific Khasra No. which could not be denied simply because he had not relied on that document which he sought to produce by way of additional evidence–Mutation sought to be produced being of inheritance pertained to substantial rights of plaintiff and had direct bearing on merit of suit–Order of Appellate Court refusing to grant permission to produce additional evidence was set aside and case was remanded to Trial Court for fresh decision after allowing opportunity to defendants to adduce evidence in rebuttal. PLJ 2002 Lahore 171 Discretion of Appellate Court to disallow application for production of additional evidence assailed in revisional jurisdiction of High Court–Discretion whether proposed additional evidence was or was not essential for enabling Appellate Court to pronounce judgment entirely rested with that Court and interference with said discretion was not warranted in revisional jurisdiction, if while exercising that discretion no illegality or material irregularity was committed, such interference would amount to pre-empting discretion of sub-ordinate Court–No breach of any provision of law or commission of any error of procedure by Appellate Court having been pointed out, no interference was warranted in revisional jurisdiction. PLJ 2003 Lahore 573 Petitioners have been given sufficient opportunity to produce evidence and taking advantage of that opportunity placed on record sale-deed–Yet such deed was disbelieved by trial Court–Oral evidence was complete, therefore additional evidence under O. 41, R. 27 could not be allowed–Further held: First Appellate Court has rightly declined to allow to adduce additional evidence–Revision petition dismissed. PLJ 2004 Peshawar 398 Jamabandi sought to be produced was in respect of different Khasra number and same did not relate to Khasra number in question–No prejudice was thus, caused to petitioners by non-consideration of said document by Appellate Court.PLJ 2003 Lahore 798 Permission to produce such documents not granted by Appellate Court–Legality–Documents sought to be produced were public documents and there was no probability of their tampering–Controversy involved in suit related to inheritance and relationship of parties with deceased propositus–Nature of dispute would indicate that documents in question, were quite relevant to matter involved in relevant issue–Additional evidence can be allowed if Court feels that evidence sought to be produced, was needed by it for just decision of case–Order passed by Appellate Court while rejecting application for production of documents by way of additional evidence being tainted with illegality and material irregularity was not sustainable–Case was remanded and application in question would be deemed to be pending for decision afresh on merits. PLJ 2004 Lahore 1768 Remand of case on that point was not warranted as same would not serve any purpose except prolongation of litigation–Concurrent findings of Courts below thus, do not suffer from any infirmity so as to warrant interference in revisional jurisdiction. PLJ 2003 Peshawar 212 Two documents which were sought to be produced in additional evidence have no bearing on pleas of parties regarding identification of properties and area underneath about which evidence had already been produced by parties and same was thoroughly examined by trial Court and first appellate Court, therefore, said additional evidence was not at all relevant for purpose of disposal of suit on merits–Application dismissed. PLJ 2001 SC 618 Allowed to prove notice of Talb-e-Ishhad but not allowed to produce witnesses–Challenge to–Preemptor/petitioner was allowed to prove notice of Talb-e-Ishhad and said notice could only be proved by production of attesting witnesses thereof–Order of allowing production of additional evidence could not be frustrated or set at naught by declining request of pre-emptor to produce attesting witnesses in evidence, which tantamount to giving by one hand and taking by the other–Under S. 13 of Punjab Pre-emption Act, 1991 notice of Talb-e-Ishhad is required to be attested by two truthful witnesses–Word ‘proof’ means and includes proof by production of witnesses so that other party should have opportunity to cross examine such witnesses–Attestation of notice of `Talb-e-Ishhad’ and proof thereof is not a mere formality but a sine qua non for exercise of very right of pre-emption–Held : Trial Court ought to have exercised its jurisdiction by allowing petitioner to produce attesting witnesses of notice to do complete justice. PLJ 1998 Lahore 307
  3. Ad-interim injunction: – Injuction was allowed in plaintiffs suit for permanent injunction– Copy of Khasra Girdawari showed plaintiff being in possession–Correction of such entry was not made till the disposal of application for temporary injunction–Sale of land effected by one of co-sharers in favour of plaintiff indicated that question of balance of convenience and of irreparable loss was in. favour of plaintiff–There being concurrent findings of fact in favour of plaintiff, no scope for interference through exercise of revisional jurisdiction was made out. PLJ 2002 Lahore 1521
  4. Adjustment in consolidation proceedings: – Decree by trial Court, set aside in appeal–Validity-Question of title which could not at all have been decided by consolidation authorities even if question was before them–Unless and until it was to be found on basis of evidence on record that sale in favour of petitioner. by Civil Court much less consolidation officer—Held: Appeal shall be deemed pending before Addl. (District Judge who shall hear parties and decide Appeal–Petition accepted. PLJ 2004 Lahore 1540
  5. Administration suit: – Share, determined by Courts below in preliminary decree–Findings of fact concurrently recorded by courts below and having not been seriously assailed by petitioner in revision have attained finality–Effect of such concurrent judgment, is that rival plaintiff was declared to be the real brother of deceased and found entitled to 3/4 share of property left by deceased while widow of deceased being issueless was deemed to be entitled to 1/4th share of the same–Judgment and decree of Courts below to that extent were maintained. PLJ 2002 Lahore 1491
  6. Agreement through mistake:– Effect of alienation after execution of will–Question of law–Law is well settled that testator cannot make bequest all his property in favour of his heirs without consent of all heirs and that consent is to be expressed both in his life time as also after his death–Second principle applicable is that in case testator after making will proceeded to alienate said property or any part thereof, then said act of alienation constituted revocation of will–It is admitted position that testator proceeded to alienate land in village Gowinda vide Mutation Exh. P7 on 16.5.1954 vide death entry Exh. P18, “B” died on 21.9.1957–Held : Land subject matter of “will” stood alienated by “B” in his life time and as such “will” stood revoked. PLJ 2001 Lahore 647
  7. Allottee of Govt. Land:– Executed agreements to sell and also appointed attorney–Attorney further executed agreement to sell with petitioners–Suit for declaration dismissed by trial Court–Appellant Court reversed finding of trial Court and decreed suit of plaintiffs/respondents–Validity–Holding of agreement to sell–Conveyance of right to another person by further entering into such agreement–Legality–Protection u/S. 53-A Transfer of Property Act, 1882–Grant of–Agreement was executed by Respondent No. 2 who himself was holding agreement to sell from Respondent No. 1, dated 27.12.1963–Section 54 of Transfer of Property Act describes that contract for sale of immovable property is contract that sale of such property shall take place on terms settled between parties–It does not itself create any interest in or change on such property–Agreement to sell in favour of respondent No. 2 did not create any right or interest in or charge on suit property–He was merely holder of agreement to sell from Mst. “M” who herself was not having any perfected right in immovable property as she was herself merely allottee–Suit of plaintiff respondents was dismissed but they never filed any suit for specific performance and even till to date they have not come up with any suit for specific performance which right if at all they had, stood completely faded out with flux of time–Plaintiffs/Respondents Nos. 27 to 45 did not acquire any right under agreement to sell dated 27.12.1963 and even if they had acquired any semblance of same was lost with flux of time and in absence of any valid subsisting contract in their favour, Addl. District Judge was not legally justified to award decree of declaration in favour of Respondents Nos. 27 to 45–Provisions of Section 53-A does not dilute provision of Section 44 of Transfer of Property Act, 1882–It merely lays down principle of equity where transferee had paid consideration and in part performance of written contract he is in possession of property–Therefore claim of possession of transferee should be under proper, legal and enforceable contract–Held : Protection of Section 53-A of T.P.A. was not available to them and they could not use it as weapon to obtain decree for declaration–Revision allowed and suit of plaintiffs dismissed. PLJ 2002 Lahore 1052
  8. Amendment in pleadings:- Amendment in question, has not changed cause of action or subject matter in the tis–Impugned amendment has been allowed in order to do complete justice between the parties and avoid further litigation–No interference was warranted in impugned order of amendment in exercise of constitutional jurisdiction. PLJ 2003 Peshawar 110 Order of A.D.J. allowing amendment in plaint, would not fall under catagory of “case decided”–Therefore, High Court is no competent to entertain revision application against such order—Petition mis-conceived, hence, dismissed. PLJ 2000 Peshawar 13 No universal principle that amendment sought at belated stage cannot be considered—Application seeking amendment in written statement so as to incorporate plea of limitation not allowed by trial Court on ground that objection being on point of fact known to applicant while filing written statement and could not be allowed at belated stage—Revision accepted against impugned orders of trial Court—Art. 10, Limitation Act (1908) and S. 30, Punjab Pre-emption Act (1913), PLJ 1980 Lahore 95 Effect on limitation–Amendment in pleadings takes affect from date pleading was initially filed and not from date of order allowing amendment or filing amended pleadings–Amendment in question, did not change substance and nature of suit therefore question of limitation would not arise–Revision against judgment and decree of Court below being not maintainable was dismissed. PLJ 2003 Lahore 834 Amendment in pleading cannot be refused if the same was emanating from facts mentioned in plaint especially when it does not tend to change cause of action–Plaintiff having filed suit for declaration but later on made application for amendment of plaint on the plea that facts stated in plaint necessitated that suit should have been for specific performance of agreement to sell–Court should not have refused his such prayer when. there was nothing on record to show that the same was motivated by any mala fide and that such prayer emanated from same bundle of facts narrated in plaint constituting cause of action in suit–Application for amendment though belated being not motivated by mala fide, technicalities should not having been allowed to reign supreme so as to block administration of justice–Amendment in question, was allowed and case was remanded to trial Court to proceed afresh in accordance with law. PLJ 2003 Peshawar 288 In view of Pronouncement of S.C in Mst. Ghulam Bibi and others us. Sarsa Khan and others (PLD 1985 SC 345) Courts should be liberal in permitting amendment of pleadings and all amendments which are necessary for determining real matter in controversy must be allowed. But it is equally . well settled that application for amendment must be bonafide and that defence already set up in written statement cannot be allowed to be totally substituted nor can its nature be changed. It is not open to petitioner to raise plea of fraud and misrepresentation for first time by seeking amendment of written statement. Under amendment another plan intended to be got incorporated in written statement is that deceased made oral gift to petitioner of land under Khokha and site in his possession. This plea is in conflict with plea of adverse possession and also amounts to making out new case and altogether altering defence taken in written statement. Facts which petitioner wanted to plead were well within his knowledge earlier but were not pleaded. Application appears to have been filed merely to malign respondents rather to advance case of petitioner. It does not furnish valid basis for amendment for reason that it is not germane to real question in controversy between parties within meaning of O. 6, R. 17. PLJ 1996 Lah. 773 = PLD 1996 Lah. 429. Appellate Court had exercised its discretion and jurisdiction in accordance with law and had correctly remanded case to trial Court for decision afresh in accordance with law after recording amended plaint–No illegality or irregularity having been committed by appellate Court, no interference in revisional jurisdiction was warranted. PLJ 2004 Lahore 1491 Application for amendment of plaint and for additional evidence–Justification for–Judgment of dismissal of suit having been maintained on the grounds other than that suit was not maintainable, amendment sought by plaintiffs would be merely in consequential and no useful purpose would be served thereby–Likewise application for additional evidence was dismissed as being infructuous. PLJ 2003 Lahore 1208 Petitioner’s application under S. 152 C.P.C. for amendment of decree claiming interest on amount of compensation awarded to them was dismissed–Legality–Judgment/decree passed by Referee Judge shows that compensation awarded to petitioners was almost doubled with 15 percent compulsory acquisition charges–No interest, however, was granted to them–No further appeal or revision was moved by petitioners–Application under S. 152 C.P.C. was, however, filed belatedly–Non-grant of interest would not come under purview of “omission” in terms of S. 152 C.P.C.–Neither trial Court nor High Court had granted interest to petitioners, therefore, same could not be granted in terms of S. 152 C.P.C. PLJ 2003 Peshawar 86 Respondent application for amendment of plaint was accepted and case remanded for fresh decision in accordance with law–Legality–Dismissal of earlier application for amendment on technical grounds without touching merits and without determining rights to amend pleadings is no bar for maintaining second application for the same purpose in as much as, second application would only be barred when earlier one was decided on merits–Earlier application of respondent. Was dismissed on ground of being ambiguous and subsequently un-ambiguous application detailing with clarity proposed amendment cannot be thrown out on the ground that earlier application for amendment was dismissed–Complexion of suit would not be changed by amendment of plaint. PLJ 2004 Lahore 1491 Application in forma pauperis–Amendment sought application–Effect–Amendment in schedule of application pertaining to property was being sought by petitioner without there being any objection from the other side–Trial Court ought to have allowed such amendment before fixing case for decision whether application in forma pauperis was to be allowed or rejected in terms of O.XXXVIII C.P.C.- Trial Court was directed to allow amendment as refusal would be illogical and incorrect–Case was remanded to trial Court to proceed further with application in forma pauperis in accordance with law. PLJ 2000 Lahore 887 PLD 1968 Lah. 423; AIR 1926 Lah. 642; AIR 1934 Lah’. 231; AIR 1929 Lah. 257; AIR 1926 Mad. 958; AIR 1938 Pat. 209; AIR 1931 Rang 318; AIR 1938 Oudh 146; AIR 1932 Born 584; MR 1948 All. 244; AIR 1931 AM. 659; 87 P.R. 1912; AIR 1934 Lah. 295; PLD 1977 Kar. 772; AIR 1936 Sindh 130 ref Courts order relating to amendment of plaint was not complied with by plaintiff therefore, decree in their favour without compliance of order of Court was not warranted–Discretion of trial Court is to be exercised judicially in relevant consideration in light of attending facts and circumstances of each case and not whimsically or arbitrarily–Order XVII, R. 3 of C.P.C. being very drastic and penal should be used only in exceptional cases–Plaintiff having not filed amended plaint as per direction of Court, question of closing evidence of defendant, does not arise even if case was adjourned at the request of defendants for producing evidence–Judgment of Courts below were, thus, set aside and case was remanded to trial Court for proceeding afresh in accordance with law.PLJ 2003 Lahore 1586
  9. Amendment of Warabandi:– Application of petitioner indicates that there was no dispute regarding distribution of canal water between petitioner and respondent–In fact this was a simple intimation to SDCO by vendee for substitution of his name for vendor–Petitioner had not made any grievance regarding Nigal water in his application before SDCO, hence, order of SDCO on that score was rightly declared illegal–Order of SDCO after withdrawal of appeal by respondent from DCO had become final and operative against him which was rightly challenged and set aside–Respondents suit was correctly instituted in civil court against order of SDCO–Concurrent findings of courts below are supported by evidence on record which warrant no interference–Petition dismissed. PLJ 1998 Lahore 787
  10. Application U/S. 34 of Arbitration Act:- Application U/S. 34 of Arbitration Act for referring matter to Arbitrator and staying proceedings of suit. Object of Section 34 of Arbitration Act is to minimize agony of parties from facing of protracted trial. Since, there exists an all embarrassing clause in agreement between parties for referring a dispute to Arbitrator, it would be in fitness of things that matter be referred to Arbitrator. Documents referred to in revision can be brought to notice of arbitrator and all other facts including loss claimed and penalty imposed can be determined. However, if either party feels dis-satisfied, can object to decision of Arbitrator and suit thereafter, shall proceed. PLJ 1999 Pesh. 50 = 1999 MLD 736 = NLR 1998 Civil 751.
  11. Application within time from date of knowledge:- It was submitted that petitioners received order of Court dated 20.4.1999 on 29.4.2002–On 30th April, 2002 was holiday on account of Referendum held in country and 1.5.2002 was also holiday on account of Labour Day–Petitioners filed application for securing certified copy of order dated 20.4.1999 before Copying Agency on 2.5.2002–Copy was received by petitioners on 4.5.2002–5th May, 2002 was Sunday–Petitioners have filed this review petition before High Court on 6.5.2002–Learned counsel of petitioners submits that petitioners did not receive any notice and intimation from High Court and petitioners have filed application for review of order within time from date of knowledge–It is admitted fact that petitioners/respondents having not been duly served, therefore, review application filed by petitioners is within time from date of knowledge–Held: Service of petitioners/ respondents was not in accordance with mandatory provisions of law–Service of petitioners/respondents was not effected–Therefore, impugned order dated 20.4.1999 is hit by principle of natural justice–Review application accepted and case set aside. PLJ 2003 Lahore 1709
  12. Appointment of arbitrator:– Powers of Court–Provisions of S. 8, Arbitration Act, 1940 are applied to such cases where arbitrator or arbitrators are to be appointed by consent of all parties and not to those where each party is to appoint his own arbitrator. PLJ 2001 Lahore 1181
  13. Appreciation of evidence:- Plaintiff was not required to establish title to suit-land—Defendant had failed to establish source of title as asserted—Findings of Trial Court on question of possession of plaintiff and his dispossession by defendant were based on correct, careful and conscious appreciation of evidence—Such findings of fact would not call for interference by High Court in exercise of discretionary jurisdiction—Appraisal of evidence by Courts below was neither arbitrary nor suffered from misreading or non-reading of evidence or misconstruction of any material available on record—Supreme Court dismissed appeal in circumstances. P L D 2004 Supreme Court 20 It cannot be disputed that suit property is “Shamilat Deh” and according to entries of “Short Wajibul Arz” of 1905-06, land is owned by two tribes, namely, Khairukhel and Landaka in equal shares–Respondents belong to Khairukhel tribe as is evident from pedigree table brought on record during cross-examination of Patwari, whereas petitioner neither belongs to Khairukhel nor to Landaka tribe–Patwari did support possession of respondents over suit land and did not admit possession of petitioner–If entries of Short Wojibul Arz are kept in view, Shamilat Deb is owned by Khairukhel & Landaka tribes and Deputy Commissioner is also empowered to give a piece of land to other person but he must be resident of said Village–There is no evidence and indeed it is not case of petitioner that he was given land by Deputy Commissioner–Learned Courts below are unanimous that possession of suit land is with respondents–On the other hand, learned counsel for petitioner failed to point out any material to show that petitioners are either Khairukhel or Landaka–Similarly, there is nothing to show that Deputy Commissioner had given them any piece of land out of Shamilat Deh–Revision petition dismissed. PLJ 2001 Peshawar 96 Declaration that petitioner was owner in possession of house in dispute–Suit for–Dismissal of–Appeal failed, assailed–Held : Petitioner failed to prove her possession even evidence led by her and made her counsel conceded that she was not in possession of house in dispute–Further more non-production of any of marginal witness to prove execution of unregistered deeds in accordance with law make the same of no legal sanctity–Held Further : Claim put forth by petitioner has not been satisfactorily substantiated–No misreading or non-reading of evidence has been pointed out by petitioner–Hence concurrent finding by Courts below cannot be disturbed–Revision dismissed. PLJ 2004 Peshawar 384 First Appellate Court has a right to come to different conclusion by re-appraisal of evidence–High Court could not interfere such conclusion under Section 115 unless it finds some jurisdictional defect or any material irregularity–Petition dismissed. PLJ 2004 Lahore 668 Mortgagee, transferred mortgagee rights and mutation sanction in favour of purchaser–Suit for declaration dismissed by trial Court on ground that suit land had been re-deemed–Addl. District Judge accepted appeal and held that land remained mortgaged–Validity–Addl. District Judge has remained under serious misapprehension while recording his judgment–He has observed that land remained mortgaged–For this he has relied on statement of DW.3–This witness of course has stated in response to question in cross-examination that Respondent No. 1 had got land redeemed and then sold to his father–Again learned Addl. District judge has not made any effort to read entire evidence on record–This witness has stated that his age on 17.7.1985 (date his statement was recorded) was 21 years–He must have been about ten years of age when mutation was attested in 1974–Said admission was in fact wrong and had learned Additional District Judge examined document which is Register Haqdaran Zamin for year 1980-81 he would have certainly found that land stood re-deemed–Learned counsel for respondents has no explanation to offer when confronted with said document–Held : Admission made by DW-3 is wrong and negated by Register Haqadran Zamin–Held further : Even otherwise, admission, wrong in fact, is not binding–Petition allowed. PLJ 2001 Lahore 1027 Plaintiff neither had mentioned place, date & time of Talab-e-Muwathibat nor had disclosed any source of information regarding sale, in his plaint–Held : In such circumstances pre-emption suit could not have decreed–High Court set aside judgment and decree of Appellate Court and dismissed suit. PLJ 2004 Peshawar 274
  14. Approbate and reprobate:- Suit filed by respondent for possession of shop on Exchange deed–Suit dismissed by trial Court and decreed by Appellate Court–Revision against–Held : Certified copy of Exchange Deed has been produced on record and it is registered document, execution whereof is disputed by none and as such its certified copy is admissible in evidence–Petitioner could not have been allowed to approbate and reprobate by pleading valid title on one hand and at same time pleading adverse possession–Respondent had proved his title–Petitioner had failed to prove title pleaded by him–Impugned judgment and decree of Appellate Court decreeing suit of respondent is maintained–Revision petition is dismissed leaving parties to bear their own costs. PLJ 2001 Lahore 869
  15. Appropriate forum:– Suit was initially decreed by trial Court–Appeal was dismissed–Civil revision was filed before High Court but same was dismissed–Supreme Court refused to grant leave to appeal–Petitioner filed application under S. 12(2) CPC directly before High Court–Held: Petition was not competent before High Court–High Court dismissed said petition. PLJ 2004 Peshawar 253
  16. Appropriate Remedy:- Declaration of order of Revenue hierarchy without lawful authority and of no legal effect by High Court in writ petition–Suit challenging orders of High Court dismissed by Civil Judge–Appeal also failed before Addl. District Judge– Petitioner not party before High Court in Writ Petition–Legal remedy available to petitioner instead of filing civil suit–Question of–If petitioner was aggrieved of final judgment passed in writ petition, appropriate remedy available to him was to approach High Court u/S. 12(2) CPC if he fulfilled requirements of said provision of law–Held : Both lower courts were correct in holding that in view of judgment of High Court it was not possible for lower Courts to either entertain or adjudicate upon matter which had already been finally decided by High Court–Petition without merit accordingly dismissed. PLJ 2002 Lahore 1000
  17. Award:- Award after stay of proceedings by Court:- Although an award can be set aside on grounds enumerated in Section 30, but when award is product of an illegal action after stay of proceedings by Court, it can be set aside without adhering to provisions of Section 30 of Act. being void and illegal. While exercising revisional jurisdiction, irregularities and illegalities cannot be allowed to go un-noticed. particularly in view of fact that arbitrator had anxiety to give award despite stay order. Conclusion is that arbitrator misconducted himself as well as proceedings. Arbitration award has been given by arbitrator without lawful authority and jurisdiction. PLJ 1994 Qta. 14 = PLD 1994 Qta. 99. Arbitrator was not acting as Court to write detailed judgment–Operative part of award was preceded by history of issue and rationale of award, therefore, such award could not be deemed to be without reason–Concurrent judgments of Courts below making award rule of Court were neither against record nor reflect any misreading or non-reading of evidence record to warrant interference in revisional jurisdiction–Petition dismissed. PLJ 2004 Lahore 1688 Trial Court made award in question, as rule of Court without adverting to objections filed by defendant in haste in a summary manner–Appellate Court was justified in law to set aside order of Trial Court–Appellate Court, however, acceded to its jurisdiction by dismissing suit although, same should have been remanded to Trial Court for decision of objections filed by defendant before Trial Court in accordance with law after providing proper hearing to parties–Judgment of Appellate Court was thus, not in accordance with law–Judgments of both Courts were set aside and case was remanded to Trial Court with direction to decide objections filed by defendant in accordance with law and decide case afresh. PLJ 2003 Lahore 345 Petition for setting aside decree as a result of award made rule of Court–Duty of Court–S. 14(1) of Arbitration Act provides that when arbitrators or umpire have made their award, they shall sign it and shall give notice in writing to parties of making and signing thereof–Award had not been signed by arbitrators within meaning of Section 14(1) of said Act–Trial Court did not act in proper manner in as much as it ought to have warned parties to file objections within time prescribed by law–On other hand, he proceeded to adjourn case to 20.11.1982 for filing of objections–Had objections been filed on 20.11.1982, they would have been barred by time by one day- However, petitioner was alert in view of conduct of two respondents which had become evident on face of record by then and did not take any chance and filed objections on 7.11.1982–There objections were thus very must within time–Held : Pleadings and evidence on record have been deliberately misread by two Courts below and orders passed by them respectively cannot be sustained–Civil appeal allowed. PLJ 2000 Lahore 660 Judgment and decree had been passed strictly in accordance with award given by umpire. Umpire having been appointed with consent of parties, award given by him was made rule of court with modification detail of which had been given in judgment and decree of Court below. Reference to arbitrator had to be confined to subject-matter of suit and award on that matter which was not covered by suit was rightly deemed to be void to that extent and decree and judgment excluding extraneous matters showed no infirmity or material irregularity in impugned judgment and decree- Decree and judgment being in accordance with award, no revision against the same was competent as the same would destroy finality of arbitration proceedings. PLJ 1999 Lah. 426 = 1999 CLC 319.
  18. Benami transaction:– Evidence on record was sufficient to prove that respondent was not Benamidar but real owner of house in question—Finding of Trial Court on question of title were against evidence and law of Benami transaction—Appellate Court rightly reversed findings of Trial Court on such aspect of matter—No illegality or irregularity had, thus been committed by Appellate Court—No interference with finding of Appellate Court was warranted in revisional jurisdiction. 2003 Lawvision 83 = PLJ 2003 Lahore 272
  19. Building and Zoning Regulations of Capital Development Authority:- Notices issued to petitioner that premises in occupation of her being situated in residential sector, use of such premises for commercial purposes was not warranted and the same was in violation of Building and Zoning Regulations of Capital Development Authority–Petitioner’s prayer for temproary injunction against such notice was dismissed by Courts below–Validity–Two Courts below had concurrently recorded finding of fact that petitioner does not have prima facie case in her favour–Petitioner did not claim that use, of premises in her occupation was not non-conforming use, violative of Building and Zoning Regulations of Capital Development Authority–In the face of such clear admission of petitioner, mere fact that several other persons were running such like commercial enterprises in otherwise would not confer right on petitioner for the reason that thousand illegalities would not legalize yet. another illegality–Petitioner, thus, could not claim on strength of other people’s case immunity from legal action against herself–Respondent’s however, had stated at the bar that notices have been issued to all those who were not conforming to Building and Zoning Regulations of Capital Development Authority–Orders of Courts below thus, would not warrant interference–Petitioner was not found entitled to grant of interim injunction. PLJ 2000 Lahore 2016
  20. Cancellation of land:- Cancellation of land had no nexus with allotment of the same in favour of respondents–Petitioner, thus had no locus-standi to challenge order of allotment in favour of respondents–Relief claimed by petitioner of declaring order of cancellation of land in question, from his name was illegal and further relief that he was entitled to grant of proprietary rights could not have been granted to him under the law. PLJ 2003 Lahore 313 Suit for declaration to the effect that cancellation land allotted to petitioner under 15 years Scheme (Chashma Barrage Affectee) was illegal–Suit decreed by trial Court, set aside in appeal by Addl. District Judge on ground that petitioner had not taken over possession of land after allotment–Validity–Misreading of evidence–Only ground on which allotment was cancelled was that petitioner had not obtained possession and that he is not paying Zari-Laghan–Evidence led by petitioner has not at all rebutted by respondent–On other hand it was not at all denied by their witness that petitioner was given possession; that he paid all instalments and that he has fulfilled all terms of allotment–Held: ADJ has acted without jurisdiction while passing impugned judgment and decree inasmuch as he has been failed to use evidence while dismissing suit of petitioner–Civil revision allowed. PLJ 2003 Lahore 874 Appellate Court wrongly based its judgment on findings of revenue officers–Contention of–There is no material to suggest that it was not a genuine transaction and suffered from vice of collusion–It is thus held that parties entered into a valid transaction of exchange with each other–Learned Appellate Court has incorrectly held that allotment of original allottee, predecessor of petitioners, stood cancelled–Had this been factually correct, it would have been a valid reason for setting aside transaction of exchange because in such a situation, there would have been no property/ownership to exchange with–There is nothing on the record showing cancellation of petitioners land from name of their predecessor from whom petitioners purchased same through registered sale-deed dated 30.6.1962–In fact revenue record produced by parties, pertaining to Mauza shows otherwise–It shows existence of petitioners ownership of land in village which was transferred to Respondent No. 2, in exchange, through Mutation No. 1343 dated 13.4.1964–Thus allotment in favour of original allottee remained intact and a valid exchange took place–Appellate Court has accepted respondents’ appeal, amongst others, on the ground that orders of revenue authorities are in favour of Respondent No. 2- Appellate Court did not bother to look into the final order dated 14.3.1983 of Member (Revenue) Board of Revenue, Punjab, Lahore which was upheld by High Court on 9.4.1983 in Writ Petition No. 1417/83—Perusal of these orders show that petitioner’s revision petition was dismissed by Board of Revenue merely on ground that such a question required to be settled by Civil Court and no decision was given by the Board of Revenue in regard to merit of exchange of their ownership by the parties—Even otherwise, any such decision by Board of Revenue would have been subject to scrutiny by Civil Court which is a Court of ultimate jurisdiction–In this regard, judgment of the appellate Court suffers from non-exercise of jurisdiction vested in it under the law- PLJ 2000 Lahore 1257
  21. Closing of evidence: – Plaintiffs right to lead evidence was closed on specified date and by that time there was no material available for decision by trial Court in absence of which, no judicious determination could be made–Trial Court therefore, should have proceeded under R. 1, instead of 3 of O. XVII, C.P.C.–Closing of evidence of plaintiff under O.XVII, R. 3 C.P.C. being not warranted, Appellate Court had rightly remanded case for decision afresh in accordance with law. PLJ 2004 Lahore 443 Being aggrieved revision petition was preferred which was accepted assailed–Undue importance of affidavit furnished by advocate–Deponent advocate was never produced before trial Court and due to non-production respondent could not avail opportunity of cross-examination and affidavit would have not been considered by appellate Court as evidence–Affidavit would have not been filed by advocates in relation to facts of case which was not inconsonance with principle of ethics which were binding upon advocates being officers of Court–Appeal dismissed. PLJ 2004 SC 690 Limitation would not run against petitioner as he was confined in jail during proceeding and was not allowed by Court despite his request from prison for procuring his attendance in Court–Even no copy of rejection of request or dismissal of suit was served upon petitioner in prison by Court–Held Further : There was no occasion for including under XVII Rule 3 but Courts below failed to apply their mind to circumstances of instant case–Hence impugned order was arbitrary, inequitable and illegal same set aside and case remanded–Revision accepted. PLJ 2004 Lahore 1812 Sufficient opportunities were produced–Suit for specific performance was decreed preferred appeal, case was remanded–Feeling aggrieved appeal was accepted–Challenge to–Appellant/Respondent had failed to produce remaining evidence in suit despite numerous adjournments allowed on requests–Validity–Trial Court validity his exercised in discretion under R. 3 of O. XVII, C.P.C. to close respondent’s right to produce further evidence–Petitioner had also proved case ‘through adequate and credible evidence which was duly and properly evaluated and appreciated by trial Court to pass decree in favour of Petitioner–Held : High Court being well based does not admit interference–No illegality, infirmity or irregularity whatsoever has been committed justifying interference by Supreme Court–Appeal dismissed. PLJ 2004 SC 690
  22. Comparison of thumb impression:- Application for comparison of thumb impression dismissed by trial Court–Suit dismissed by trial Court–Acceptance of appeal by appellate Court with directions to trial Court to get thumb impression compared– Reopening of matter by Appellate Court relating to comparison of thumb impression in appeal u/s 96 C.P.C. against judgment and decree passed by trial Court–Jurisdiction–First Appellate Court can go into all questions of law and fact and can lawfully reconsider and redetermine any interlocutory order passed by trial Court–Order under Order 9 Rule 2 C.P.C. is not determination on merits–Matter can be reviewed from another angle–Even under Order IX Rule 2 CPC filing of fresh suit on same cause of action is not precluded–Applying this principle to appeal, it can be safely concluded that same question which was subject matter of earlier revision petition dismissed under Order IX, Rule 2 CPC could be agitated through appeal filed against final judgment and decree of trial Court–Held: Entire evidence was present on record and if appellate Court considered that it was necessary to have thumb impression of respondent compared with purported thumb impression on registered power of attorney and relevant register, it should have proceeded to do same itself at appellate stage–Civil revision allowed to that extent. PLJ 2002 Lahore 979
  23. Competency:- Provisions of Law Reforms Ordinance, 1972 not yet extended to tribal areas. Revisional jurisdiction under Section 115 would only he to High Court and not to District Judge. Held: Impugned orders are without jurisdiction. District Judge directed to return petition to petitioners for presentation before High Court. PLJ 1989 Qta. 57
  24. Compromise of Parties: — Assertions in plaint reveal that suit was disposed of in mechanical manner, though plaint showed serious disputed between the parties and the fact that the suit was decreed on first date of hearing which fell three days after filing of suit and the fact that no notice having been issued, defendants were not expected to be present in case, Trial Court should have become conscious and careful in accepting conceding statement of defendants, especially when they were not represented by counsel–Court must satisfy itself that compromise or settlement was genuine in nature and that real persons against whom decree was being passed were present in Court–Decree in question, would reveal that no such reasonable care was taken and suit was decreed in routine–Impugned decree was, otherwise, illegal and without jurisdiction, in that, declaration of title was claimed on basis of oral sale value of property being more than Rs. 32,000/- No. transfer of title would take place without registered sale deed in terms of S. 54, Transfer of Property Act, 1882–In absence of registered sale deed, Court could not grant decree of declaration of title–Alleged consent decree was nullity is law and was passed without jurisdiction–Interference in revisional jurisdiction. although could not be made on the ground that the findings were erroneous, yet if Courts below were found to have misread evidence on record, then findings of fact would be open to interference under Section 115 C.P.C.–Impugned judgment and decrees were set aside in circumstances. PLJ 2000 Lahore 2405 Suit for declaration to the effect that ‘ same was result of fraud and collusion between parties–Decreed by trial Court, set aside in appeal– Status of adopted son in Islamic Law–Family Settlement and estoppel against law–Concept of–Suit brought by deceased Respondent was on basis of being adopted son–Obviously, no suit on such basis was competent under Muslim law at its very inception–He had not claimed relief on any other basis–Suit was itself not maintainable and could not culminate in any decree much less compromise decree–Decree passed in such suit is without lawful authority and null and void–Family adjustment amongst co-sharers with object to preserve peace and amity between members of family and has to be based upon legal and equitable consideration–If family settlement is based upon illegal consideration it shall itself be illegal and would not create any rights inter se parties–Held: Findings of appellate Court regarding alleged family Settlement is illegal–Held further. Compromise in violation of principle of law is illegal and ineffective and would not operate as estoppel against party to that compromise–Petition accepted. PLJ 2002 Lahore 959 Contention of petitioner’s counsel that appellate Court did not consider salient feature of case and had accepted appeal on extraneous grounds is also misconceived inasmuch as in plaint it was alleged that impugned mutation had been given effect to revenue record since more than 30 years ago and long standing entries in revenue record showing ownership and possession of Respondent were prayed to be cancelled–Impugned judgment shows that conclusion drawn that petitioner did not possess a prima facie case and balance of convenience also did not tilt in his favour, are based on sound and plausible reasoning hence interference in revisional jurisdiction is not warranted against such conclusions. PLJ 2003 Lahore 955 Denial of exchange and filing of suit for possession by petitions alleging therein that respondents were given land for cultivation as non-occupancy tenants, but they stopped payment of produce and also denied their title–Suit dismissed by trial Court, appeal also failed-before Addl. District Judge-Challenge to–Misreading of evidence and reliance on entries in column of Legan–Validity–In Register Haqdaran Zamin for year 1977-78 petitioners are recorded as owners while Respondents Nos. 1 and 2 are recorded as ” ” and Legan column is to similar effect as same is entry in year 1981-82–Learned District Judge has placed implicit reliance on said entries in column of Legan–Learned District Judge had committed error by misreading said document–It is now well settled that presumption of correctness attaches only to column of ownership and of possession of record of right and no such presumption is attached to column of Legan–Petitioner has categorically stated that land was given by his father to respondent in exchange was sold away by respondents–This fact has neither been challenged in cross-examination nor denied by defence witness–Thus nor defence raised stands wiped out by said admission or failure of denial of statement of PW. 1 that land given in exchange was sold away by respondents–Contention is that petitioner refused offer to take oath on Holy Qur’an to state that land was given to his father in exchange and that respondents had been paying him share of produce–There is no recognized rule of law that person refusing to take special oath will be presumed to have made false statement–Fact remains that statement made on oath by petitioner is wholly supported by documentary evidence on record–Held: Court below have proceeded to misread evidence on record, impugned judgments and decrees cannot be sustained–Civil Revision allowed. PLJ 2001 Lahore 772 Admittedly suit was filed on 23.7.1995 and plaintiff was directed to deposit Zara-e-Soyam within 30 days–Zar-e-Soyam was not deposited within 30 days–Prior to 6.12.1995 when defendant/respondent had entered into compromise and alleged statement was recorded neither Zar-e-Soyam had been deposited nor time had been got extended–Held : Even if it is assumed that compromise had been executed between plaintiff/petitioner and defendant/respondent, suit could not be decreed for non deposit of Zar-e-Soyam as required by Section 24 of Punjab Pre-emption Act, 1991–Held further : Impugned Judgments and decrees have been passed in accordance with law. PLJ 1999 Lahore 1083 Trial Court rejected application of respondents under S. 12(2) C.P.C. wherein allegation of collusiveness was leveled against their counsel in making statement for compromise, without putting parties to trial–Appellate Court, however, directed trial Court to frame issues and decide the matter on basis of evidence–Validity–Respondents in their application had specifically alleged that their counsel had colluded with opposite party (petitioners) and fraudulently got the suits decided against respondents–Appellate Court had rightly maintained that matter in controversy could not have been decided without framing of issues and recording of evidence–Where allegations had been leveled against counsel, such allegations could not be decided without framing of issues and deciding the matter on basis of evidence produced by the parties–Order of remand of Appellate Court being in accord with precedents of superior courts, no interference was warranted in revisional jurisdiction. PLJ 2001 Lahore 128 No decree was drawn by Court–Terms of compromise recorded by Court–Execution–Competency–Provisions of C.P.C. relating to execution of decree are applicable to order disposing of suit in terms of compromise as per provisions of S. 36 of C.P.C.–Execution proceedings against order in question, were thus, maintainable–Even disputed issues can be raised before Executing Court which would resolve the same in accordance with law after affording due opportunity to both parties. PLJ 2004 Lahore 30 No decree was passed in favour of plaintiff–Execution in terms of 0. XXI, R. 32 C.P.C.–Competency–Only a decree for specific performance of contract or injunction if passed is to be executed provided judgment debtor willfully failed to obey same–No decree against defendant had been passed–Plaintiffs suit was disposed of on the undertaking of defendant–Statement of defendant which was not culminated into decree, was not enforceable through execution petition–Orders passed in execution by two Courts below were set aside–Execution petition filed by plaintiff was dismissed. PLJ 2003 Lahore 926
  25. Concurrent finding:— Appellant has himself filled-in-form of Secondary School Examination and subsequently passed examination–Provisions of Section 42 of Specific Relief Act, shows that it is in three cases that such declaration can be granted; first i.e. declaration of status, legal right or character–Prayer of applicant on face of it does not fall within any of three ingredients of Provisions of Section 42 of Specific Relief Act–Contention of learned counsel in as much as Section 9 of C.P.C.. provides that all matters of civil nature, are to be barred by civil court is accepted, but a person approaches court to seek particular relief has to satisfy as to under what provisions of law he is entitled to get such relief–Contention that word” Shariq” flows from word “Sher” being not treated as good name under Islamic Concept is hardly ground to be considered Held : Courts below have rightly exercised their jurisdiction and acted in exercising jurisdiction legally and there is no material illegality or irregularity in exercising of jurisdiction–Application without substance is accordingly dismissed. PLJ 1998 Karachi 642 High Court has very limited jurisdiction to interfere in findings of Courts below while exercising revisional jurisdiction under S. 115 C.P.C. unless and until same was result of mis-reading or non-reading of record—Petitioners failed to point out any piece of evidence which was misread by Courts below or violated any principle laid down by Superior Courts—No interference was thus, warranted in concurrent findings of Courts below. PLJ 2003 Lahore 210 Concurrent finding of fact could be interfered with by the High Court only where such finding was based on “conjectural presumptions” erroneous assumptions, wrong proposition of law, insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and where un-reasonable view of evidence had been taken due to non-reading and misreading of evidence. PLJ 2004 Lahore 319 Concurrent finding of courts below on question of fact was beyond reproach and immune from interference in revisional jurisdiction and where orders passed by Courts below not shown to be suffering from any error of law and jurisdiction, findings were unexceptionable and could not be interfered with in exercise of revisional jurisdiction–But it has always to be seen by court in exercise of its jurisdiction under Section 115 C.P.C. that no misreading or non-reading of evidence or any other legal infirmity with judgment rendered by Appellate Court has occurred and in case it is shown that judgment rendered by court below suffered from misreading and non-reading of evidence or any other legal infirmity, same can be interfered with. PLJ 1998 Lahore 1582 Section 115 of Civil Procedure Code applied to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way effect jurisdiction of High Court; no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law. Unless the decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be correct in appeal, but reversion will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed. PLJ2000 Lah. 821. Perusal of impugned Judgments of Courts below would show that evidence on record was properly examined, assessed and appraised by both Courts below and conclusions were correctly drawn by them–Neither mis-reading of evidence was pointed out nor any material piece of evidence was shown to have been overlooked–Concurrent findings of fact recorded by two Courts below regarding encroachment which were based on evidence could not be successfully assailed in revision. PLJ 2003 Lahore 798 Such findings of fact would not be disturbed by High Court either in second appeal or in revisional jurisdiction unless courts below while recording” finding of fact had either misread evidence or had ignored any material piece of evidence on record or the same was perverse. Jurisdiction of High Court being narrow and fact that on re-appraisal different conclusion could be drawn was no ground to interfere with finding of fact much less, concurrent finding recorded by courts below. PLJ 2000 Lah. 1126 = 2000 CLC 1359. Courts below have given concurrent findings of fact against petitioner–Petitioner failed to point out any piece of evidence which was misread by Courts below–Revision petition was thus, liable to be dismissed on merits as well as time-barred. PLJ 2003 Lahore 1227 No misreading or non-reading of evidence was pointed out. There is concurrent finding of fact by both. Courts below that petitioner had failed to prove transaction to be sale under disguise of exchange of agricultural land in order to defeat right of pre­emption of petitioner. Learned counsel has not pointed out any misreading and non-reading of evidence so as to justify contrary conclusion. Even otherwise, it is lawful .and permissible to defeat right of pre-emption by any legitimate means or device of exchange of immovable property. Impugned judgments and decrees do not call for any interference by this (High) court in exercise of revisional jurisdiction. PLJ 1997 Lah. 1169 = 1997 CLC 1819 = 1997 Law Notes 755. Petitioners’ suit for recovery dismissing by trial Court awarding cost of Rs. 5,000/- to respondent–Amount enhanced to Rs. 10,000/- by appellate Court–Challenge to–There was no direct evidence in respect of payment of amount in question to respondent/ defendant by petitioner/plaintiff–In such situation, there seems to be no misreading or non-reading of evidence as urged by counsel for petitioner–Costs which were initially awarded as Rs. 5,000/- to respondent/ defendant were enhanced to Rs. 10,000/- by appellate Court on appeal filed by petitioner/plaintiff–Held: There is nothing on record to show that both Courts below had no jurisdiction to make any order in respect of aforesaid costs–Petition dismissed. PLJ 2000 Lahore 2346 Plaintiff having purchased land out of Ihata in dispute was put into possession by co-sharer/vendors–Defendant had admitted in his statement before Court that he had demolished wall of Ihata towards eastern side constructed by plaintiff–Concurrent findings of fact by Courts below cannot be interfered with by High Court in exercise of revisional jurisdiction—No illegality or material irregularity having been pointed out by petitioner in concurrent findings of Courts below, appeal’ against the same was dismissed. PLJ 2004 Lahore 963 Such finding having been rendered by Courts of competent jurisdiction could not be interfered with by High Court in exercise of revisional jurisdiction. PLJ 2003 Lahore 1143 Such findings could not be set aide on the ground that application of evidence was not proper unless findings were not supported by legal evidence or were contrary to the settled principles of law or were perverse on face of record. PLJ 1999 Kar. 600 = 1999 CLC 395. Such findings could not be set aide on the ground that application of evidence was not proper unless findings were not supported by legal evidence or were contrary to the settled principles of law or were perverse on face of record. PLJ 1999 Kar. 600 = 1999 CLC 395. Concurrent finding of fact based upon proper reading of evidence would not call for any intervention–Where, however, such findings were not based upon proper reading of record those were not immune from examination and correction in revision in supervisory jurisdiction of High Court. PLJ 2000 Lahore 1468 Concurrent findings of two Courts below are not to be lightly interfered with by High Court in exercise of revisional jurisdiction unless same are result of jurisdiction error or some material irregularity–Learned counsel for petitioner except for stressing for permission to adduce additional evidence, did not stress any other point to annul concurrent findings of two Courts below–Petition dismissed. PLJ 2001 Peshawar 51 Concurrent findings on merits of case. Nothing has been pointed out that any material aspect of the case has not been considered by the Courts below. No interference by Supreme Court. PLJ 1996 SC 1814 = 1996 SCMR 437. Normally High Court does not interfere with concurrent findings of Courts below except when finding recorded is based on no evidence or on inadmissible evidence or on misreading of evidence or is palpably erroneous or perverse. Petition dismissed. PLJ 1992 Kar. 110. High Court after merely considering statement of scribe and other witnesses came to conclusion that execution of sale-deed has been established and thus, substituted its own findings as against finding, of fact recorded by both Courts below–Even if on re-appraisal of evidence, different view could possibly be taken, same was no ground for interference with such findings of fact of two Courts below in exercise of jurisdiction under S. 116 C.P.C.–Two Courts below had given strong reasons for raising inferences against documents on basis of all attending circumstances and such Courts were justified in raising those inferences, therefore, High Court even if had framed its own opinions, different from Courts below, findings of facts, could not even then have been interfered with unless strong reasons had been given to reject inferences drawn by two Courts below–Impugned judgment of High Court was, thus, not sustainable, the same was set aside while those of two Courts below restored with modification that in order to do complete justice appellant, should pay amount of Rs. 10,000/- within two months to respondents/mortgagees who had advanced Rs. 500/- as far back as 1952. PLJ 2000 SC 522 Respondent’ claiming himself to be owner in possession of property in dispute filed suit for declaration with permanent injunction to effect that he is owner of property and petitioners be restrained from claiming any title therein–Under law such suit is. not bad and respondent was not required relief of possession and as such his suit is not hit by Section 42 of Specific Relief Act, 1877–Since petitioners could not prove lawful sale in their favour by paying price of land and transfer of possession under it, suit of respondent was rightly decreed–Held: Both Courts below returned concurrent findings of facts which are neither asserted nor are proved to have been given out .of misreading or non-reading of evidence–Held further: No illegality or irregularity was committed by Courts below, in absence of which, no interference is permissible in revisional jurisdiction of High Court–Petition dismissed. PLJ 2004 Lahore 1542 If there are concurrent findings of facts and no material irregularity or illegality affecting decision of courts below has been pointed out–Held : Revision petition is not maintainable. PLJ 1998 Lahore 464 Whether could be interfered in revisional jurisdiction. Courts below have discussed each and every issue framed in suit in detail and have given their findings correctly- Defendant-petitioner, it appears from record, did not bother to challenge verdict of trial Court vide which report of Local Commissioner was confirmed for reason best known to him. There is no infirmity in impugned judgement/decrees of courts below and concurrent findings of said courts cannot be interfered in revisional jurisdiction. PLJ 1996 Pesh. 193 = 1996 MLD 338. Award was remitted to arbitrator to state sufficient reasons–Respondents challenged Judgment in the august Supreme Court on ground that arbitrator had expired to whom the award was remitted–Case was remanded to High Court for decision afresh–Held: Absence of reason is patent on bare reading of the award–Courts below committed material irregularity and failed to exercise their jurisdiction–Award had become remittable to arbitrator–Arbitrator has died–In absence of willingness of the parties–Award cannot be sent to a new arbitrator–Award was declared void–Civil revision disposed of accordingly. PLJ 2004 Lahore 1130 Dismissal of Contempt of Court proceedings against respondent official by Trial Court as also by Appellate Court. Legal points and not factual aspects are to be discussed in revision. Factual side was already decided by trial Court as also by Appellate Court. Concurrent findings of both Courts, below indicated that they had not proposed to initiate contempt of Court proceedings against respondent official under provisions of Contempt of Court Act, 1976. Grounds agitated before High Court were almost the same which were argued before appellate Court- No legal flaw had been pointed out by petitioner who had also failed to point out any illegality in the orders of Courts, below. Concurrent findings of facts, arrived at by Courts below cannot be interfered with by High Court in revisional jurisdiction except on glaring irregularity if any. PLJ 2000 Qta. 126 = PLD 2000 Qta. 40. Object of providing forum of appeal is right to challenge judgment of lower Court forum suffering from illegalities, mis-reading or non-reading of evidence or correction of errors in judgment. First appeal is provided as matter of right and matter becomes sub-judice and reheard. It is settled law that if evidence on record has not been fully weighed and considered and does not fulfill requirements of law and erroneous conclusion means material irregularity and can be challenged in revision before High Court and liable to be set aside-Appellate Court did not apply its mind to evidence on record and admitted position. Totality of evidence ignored by lower Courts- Concurrent findings interfered. PLJ 1999 Lah. 128 = 1999 MLD 1026. There is concurrent finding of fact by both. Courts below that petitioner had failed to prove transaction to be sale under disguise of exchange of agricultural land in order to defeat right of pre­emption of petitioner. Learned counsel has not pointed out any misreading and non-reading of evidence so as to justify contrary conclusion. Even otherwise, it is lawful .and permissible to defeat right of pre-emption by any legitimate means or device of exchange of immovable property. Impugned judgments and decrees do not call for any interference by this (High) court in exercise of revisional jurisdiction. PLJ 1997 Lah. 1169 = 1997 CLC 1819 = 1997 Law Notes 755. Ordinarily it is true that concurrent findings of facts may not be set aside. However this principle is not without exception. Orders passed by trial court and maintained by appellate court, if contrary to weight of evidence, can always be set aside in exercise of revisional jurisdiction. PLJ 1997 Kar. 814 = 1997 MLD 2936. Petitioner filed suit for declaration to the effect that petitioner or collateral of Sikandar Khan died issueless–They were owner of 3/4 share of the state left by him–A decree for separate possession through partition and permanent injunction was also sough–Held: Court below rightly decided the issues and do not call for interference–Revision petition was dismissed. PLJ 2004 Lahore 1111 Concurrent findings of two courts below on question of fact on basis of evidence on record–Interference by High Court–Section 115 C.P.C. applies only to cases involving illegal assumption; non-exercise or irregular exercise of jurisdiction by lower courts–Provision of Section 115 cannot be invoked against conclusions of law or fact which do not in any way affect jurisdiction of court, no matter, however, erroneous or wrong, decision might be, either on question of fact or law, unless decision involves matter of jurisdiction–If court has jurisdiction to decide, it can decide one way or other–Jurisdiction vested in High Court under Section 115 C.P.C.. Is discretionary in nature, and, therefore, High Court will not interfere under this Section to correct every irregularity in exercise of its jurisdiction except where grave injustice or hardship would result on account of its non-interference–Both, trial Court as well as lower appellate court, have discussed evidence thoroughly in their judgement and have given valid reasons for their conclusions–Impugned judgment/decree of lower appellate Court is neither arbitrary/perverse nor is there any mis-reading/non-reading of evidence produced by petitioners/plaintiffs–Held: No case for interference by High Court in its revisional jurisdiction has been made out. PLJ 1998 Peshawar 179 There being concurrent findings of fact. Case stands closed and cannot be agitated under Section 115. PLJ 1988 Lah. 181. Where the concurrent findings are based on conjectural presumptions, erroneous assumptions and wrong proposition of law, such findings can be reversed justifiably by High Court while exercising revisional jurisdiction as conferred upon it (PLD 2001 SC 443) when High Court finds that there is grass misreading of evidence by Trial Court or of Lower Appellate Court and material evidence has been ignored, High Court can undertake reappraisal of evidence in revision. PLD 2001 SC 67 Concurrent findings of facts, how erroneous might be, were immune from interference in revisional jurisdiction in absence of any misreading of evidence–High Court upheld concurrent findings of lower Courts by which five connected suits for declaration on the basis of benami transactions had been decreed. PLJ 2004 Lahore 1165 Concurrent findings of courts below on factual aspect. Such findings of fact would not be disturbed by High Court either in second appeal or in revisional jurisdiction unless courts below while recording” finding of fact had either misread evidence or had ignored any material piece of evidence on record or the same was perverse. Jurisdiction of High Court being narrow and fact that on re-appraisal different conclusion could be drawn was no ground to interfere with finding of fact much less, concurrent finding recorded by courts below. PLJ 2000 Lah. 1126 = 2000 CLC 1359.It is well settled law that High Court cannot interfere in exercise of revisional jurisdiction with concurrent findings of facts unless there is any material irregularity or illegality affecting decision of courts below–Even erroneous decisions on fact are not – revisable except as mentioned above–Petition dismissed in liming. PLJ 1998 Lahore 1187 Petitioner, a Pardanashin lady denied transfer of suit land in favour of the respondents—Both the Courts below instead of discussing the evidence on record only relied upon report of Finger Print Expert and dismissed the suit as well as the appeal–Validity—By not dismissing the intrinsic value of as many as 14 witnesses, both the Courts below had failed to exercise the jurisdiction vested in them—Where the litigation had been lingering on since year 1978, High Court instead of remanding the case to the Trial Court, decided to remand the same to the Appellate Court as the Court was vested with the powers of Trial Court—High Court directed the Appellate Court to make a complete appraisal of evidence on record and to answer thereafter all the questions raised by both the parties. 2002 CLC 300 Objection relating to jurisdiction and application under O. 7, R. 10 CPC dismissed–Validity–Both parties were residing at Lahore, therefore, no prejudice was caused to petitioner, therefore, application filed by petitioner before trial Court was rightly dismissed by trial Court in view of parameters prescribed by legislature in its wisdom in S. 21 of CPC–Petitioner had already filed civil suit against respondent in Civil Court at Lahore, therefore petitioner was debarred to agitate matter before trial Court by filing application under O. 7, R. 10 CPC on well known principle of appropriate and reprobate, waiver and estoppel–More Courts than one have jurisdiction to try suit there was nothing in violation to public policy in agreement executed between parties to extent that dispute between them would be tried at one place out of these–If Courts of one place do not have jurisdiction under ordinary law, provision in contract that such Court alone shall have jurisdiction was void because jurisdiction cannot be conferred by consent of parties–Held : Award has been filed by arbitrator, therefore, petitioner is debarred to take objection of territorial jurisdiction in view of Section 31–Held further : Each and every case is to be decided on its own peculiar circumstances and facts and every judgment must be read as application to peculiar facts proved or assumed to be proved–Petition without merit according dismissed. PLJ 2004 Lahore 1818 Material irregularity, misreading or non reading of evidence are basic ingredients of revision. PLJ 1996 Lahore 1418 Dispossession of co-owner–Legality–In Halgadaran-Zamin for the year 1979-80 Khata remained same i.e. single–However, Patwari proceeded to add two Khatunis Nos. 60 he 61–Against Khatooni No. 60, he entered Respondent No. 1 as tenant and in balance land against Khatooni No. 61, petitions and others are in possession–Jugglery performed by Patwari becomes very apparent when examines Khata Girdawari–For Rabi 1980 Patwari managed to insert Respondent No. 1 with reference to Mutation in respect of land which in fact is in possession of petitioners as co-owners–Thus plain reading of documents on record discloses very crude attempt on part of respondent to take over possession of suit land from petitioners with the help of Patwari–It is now well settled that co-owner in possession cannot be dispossessed by other co-owner otherwise than by filing suit for partition or for possession U/S. 9 of Specific Relief Act–Held Impugned judgments and decrees are suffering from material irregularity–Petition allowed. PLJ 2001 Lahore 787 Respondent’ claiming himself to be owner in possession of property in dispute filed suit for declaration with permanent injunction to effect that he is owner of property and petitioners be restrained from claiming any title therein–Under law such suit is. not bad and respondent was not required relief of possession and as such his suit is not hit by Section 42 of Specific Relief Act, 1877–Since petitioners could not prove lawful sale in their favour by paying price of land and transfer of possession under it, suit of respondent was rightly decreed–Held: Both Courts below returned concurrent findings of facts which are neither asserted nor are proved to have been given out .of misreading or non-reading of evidence–Held further: No illegality or irregularity was committed by Courts below, in absence of which, no interference is permissible in revisional jurisdiction of High Court–Petition dismissed. PLJ 2004 Lahore 1542
  26. Conditions:- High Court may interfere where subordinate Court has (1) exercised jurisdiction not vested in it, or (2) failed to exercise jurisdiction vested in it, or (3). acted in exercise of its jurisdiction illegally or with material irregularity–Where above conditions are not satisfied, High Court would not interfere in its revisional jurisdiction–Besides, jurisdiction vested in High Court under Section 115 P.P.C. is discretionary in nature and, therefore, High Court will not interfere under this section to correct every irregularity in exercise of its jurisdiction except where grave injustice or hardship would result on account of its non-interference–Held : Both trial Court as well as Lower appellate court, have discussed evidence thoroughly in their judgments and have given valid reason for their conclusions–Held further : Learned counsel for petitioners has not been able to convince as to what type of grave injustice has been caused or what type of hardship would be faced by petitioners if revisional jurisdiction is not exercised–Petition without any substance is accordingly dismissed. PLJ 1998 Peshawar 286 Conditions:– To attract provisions of either one of Clauses of sub-section (1) of Section 115 following conditions should be fulfilled that either appellate forum was not possessed of jurisdiction to decide matter as same had done or that said forum had declined to exercise jurisdiction vested in it or that it had acted in exercise of its jurisdiction illegally or with material irregularity- It is trite principle that in absence of any of three conditions forthcoming in a given case. revisional forum reverse findings of appellate forum. PLJ 2000 SC 616 = 2000SCMR346.
  27. Condonation of delay:– Delay in filing of revision petition was condoned by High Court in circumstances. 2003 C L C 1452 To attract provisions of either one of Clauses of sub-section (1) of Section 115 following conditions should be fulfilled that either appellate forum was not possessed of jurisdiction to decide matter as same had done or that said forum had declined to exercise jurisdiction vested in it or that it had acted in exercise of its jurisdiction illegally or with material irregularity- It is trite principle that in absence of any of three conditions forthcoming in a given case. Revisional forum reverse findings of appellate forum. PLJ 2000 SC 616 = 2000SCMR346.
  28. Conjectures and surmises:- Judgment of Appellate Court whereby it reversed well-reasoned findings of Trial Court was not based on material evidence but on conjectures and surmises-Trial Court’s well-reasoned judgment, on the other hand, was supported by evidence on record-High Court in exercise of its revisional jurisdiction set aside judgment and decree of Appellate Court and restored that of Trial Court. 1995 M L D 45
  29. Consolidation of Holdings Ordinance, 1960: – Passing of order by Consolidation Officer in absence of Respondent–Validity–Bar of Jurisdiction of Civil Court u/S. 26 of Ordinance–Question of law–It is correct that statutory provision of Section 26 of Consolidation of Holdings Ordinance bars jurisdiction of Civil Court in matters falling within competence of consolidation Authorities under aforesaid statute–It is clear from protracted proceedings before revenue forums that any deficiency in order dated 22.2.1981 on account of fact that Respondent No. 1 was not heard, stood rectified by subsequent proceedings where he was afforded opportunity of being heard–In these circumstances, findings of two Courts below that all orders passed by revenue forum subsequent to 22.2.1981, were void, cannot be maintained–Held : Impugned orders were validly passed by revenue forums and courts below had no jurisdiction to set them aside–Revision petition allowed and resultantly suit filed by Respondent No. 1 stands dismissed. PLJ 2001 Lahore 441
  30. Contempt of Court: – Commitment of defendant that plaintiff would not be dispossessed nor house in question be dismantled illegally–Plaintiff, suit was dismissed on such commitment–Subsequently, plaintiff moved application under O.XXXIX, It. 2(3) C.P.C. that defendant, in breach of their commitment had dismantled wall of his house–Defendants on appearance in Court made offer to the effect that if plaintiff states on oath that they had dismantled wall of plaintiff and violated commitment they be punished–Plaintiff stated on oath that defendants had dismantled wall of his house, on which defendants were convicted–Defendants, appeal was, however, accepted, their conviction was set aside and case remanded for decision afresh in accordance with law–Defendants could not wriggle out of their own commitment made in Court–Case under O.XXXIX, It. 2(3) C.P.C. was not made out–Case was, however, made out under S. 3/4 Contempt of Court Act 1976–Undertaking given to Court by a party or his counsel has exactly the same force as an order injunction granted by Court–Cumulative effect of S. 228 PPC and S. 5(4) of Contempt of Court Act 1976, would indicate that subordinate Courts have jurisdiction to convict any person for committing contempt of Court only in circumstances mentioned in S. 228 P.P.C.–Sub-ordinate Courts could, thus, punish for contempt of Court only where contempt was committed in the face of Court or its orders were disobeyed or disrespected–Such aspect of case was not adverted to by Courts below, therefore, Trial Court was directed to make reference to High Court. PLJ 2000 Lahore 70 Legal points and not factual aspects are to be discussed in revision–Factual side was already decided by trial Court as also by Appellate Court–Concurrent findings of both Courts, below indicated that they had not proposed to initiate contempt of Court proceedings against respondent official under provisions of Contempt of Court Act 1976–Grounds agitated before High Court were almost the same which were argued before appellate, Court–No legal flaw had been pointed out by petitioner who had also failed to point out any illegality in he orders of Courts, below–Concurrent findings of facts, arrived at by Courts below cannot be interfered with by High Court in revisional jurisdiction except on glaring irregularity if any, which had not been pointed out in present case–Revision was, thus, without force and was dismissed in circumstances. PLJ 2000 Quetta 126
  31. Contract of international character: – Petitioner’s prayer for issuance of injunction restraining defendants (banks) from making payment of any amount against goods/L.C. to defendant (exporter) was not granted by Courts below–Letters of credit irrevocable in nature–Any restraint on contracts of international character upon encashment of negotiable instrument would create serious complications, hardship and anomalies in international trade and shatter confidence of traders in International banking system–Act of fraud, mischief or injustice in relation to documents of shipment evidencing shipment of goods to be in knowledge of bank, however, is the only exception–Letter of credit involve, absolute unconditional obligation on bank irrespective of any disputes between parties–Perusal of documents, would indicate that petitioner did accept delivery of goods without objecting quality of goods and without inspection at the time of loading of goods–In absence of fraud, forgery, irretrievable injury, injustice or attaining wrongful advantage from contract with regard to establishment of letter of credit, no restraint order can be passed. PLJ 2002 Lahore 108
  32. Contract under mistake of facts: – Suit decreed by Trial Court, decision upheld in appeal by Addl. District Judge–Challenge to–Effect of agreement–Section 20 of Contract Act lays down in mandatory terms that where both parties to agreement are under mistake as to matter of fact essential to agreement, agreement is void. PLJ 2001 Lahore 647
  33. Conversion of Appeal or Revision: – It is settled principle of law that one kind of proceedings can be treated as other kind of proceedings. A suit can be treated as an application and an application can be treated as a suit. A suit can be treated as an application u/S.12 (2) of CPC and decided as such. Even in matter of amendment. Court can grant amendment despite objection of limitation. Request for treating application as a suit could not he rejected on grounds of objection of limitation. Same should have been attended to on merits. Case remanded to executing Court for decision in accordance with law. PLJ 1999 Lah. 489 = 1999 MLD 901. At time of institution of suit party having right to prefer second appeal, held, would have such right intact in spite of subsequent amendment of -S. 102, Civil Procedure Code, taking away right of second appeal–Revision filed by party under misapprehension of such right converted into second appeal by High Court. 1986 C L C 2057 Petitioner instead of filing revision filed appeal against acceptance of application under S. 12 C.P.C.–Appellate Court dismissed appeal being not maintainable–Validity–Appeal which had been wrongly flied instead of revision was within limitation, petitioner’s case, therefore, was not hit by any law–Substantial justice could not be denied to any litigant on mere technicalities–Appellate Court had jurisdiction to convert the same into revision and decide case on merits after being satisfied that the case in question was not hit by any other law–High Court in ‘exercise of constitutional jurisdiction set aside judgment of Appellate Court being out come of error of law—Case remanded to Appellate Court for decision afresh on merits in accordance with. PLJ 2000 Lahore 200
  34. Conversion of Proceedings: – It is settled principle of law that one kind of proceedings can be treated as other kind of proceedings. A suit can be treated as an application and an application can be treated as a suit. A suit can be treated as an application u/S.12 (2) of CPC and decided as such. Even in matter of amendment. Court can grant amendment despite objection of limitation. Request for treating application as a suit could not he rejected on grounds of objection of limitation. Same should have been attended to on merits. Case remanded to executing Court for decision in accordance with law. PLJ 1999 Lah. 489 = 1999 MLD 901.
  35. Court Fee:- It is correct that conduct of petitioner in conducting suit before trial Court does not appear to be above board–Ignorance of law is no excuse and petitioner should have exercised due care and caution and should have valued suit correctly for purposes of Court fee and jurisdiction–High Court is also conscious of fact that on account of omission of petitioner to pay Court fee in time before trial Court he was obliged to pay Court fee upon this appeal/revision–This Court is also conscious of fact that payment of Court fee being a fiscal matter between a plaintiff and state, an omission of plaintiff should not arm an adversary defendant with a weapon to throw his opponent out of Court on a technical ground–In this view of matter, it will be in interest of justice if’ petitioner is given one final opportunity to make good Court fee before trial Court failing which law shall take its own course–Civil revision allowed. PLJ 2003 Lahore 1680 Payment of court‑fee on plaints, memorandums of appeal etc. was declared to be repugnant to the Injunctions of Islam by Federal Shariat Court which decision was subject‑matter of appeal before Supreme Court-High Court, in revisional jurisdiction, could not implement decision of Federal Shariat Court in the matter of repugnancy of provisions of Court Fees Act, 1870, and Suits Valuation Act, 1887, unless S.C wherein appeal against said decision was pending confirmed the decision-High Court is not empowered to declare any provision of any Add to be repugnant to the Injunctions of Islam as such jurisdiction exclusively vests in Federal Shariat Court-So long as provisions of Court Fees Act, 1870, are on the statute book and are not declared un‑Islamic by the Supreme Court, plaintiffs, applicants and appellants will have to pay court‑fee in the law Courts. 1993 C L C 706 Petitioner made statement in appellate court that she was prepared to pay Court-fee of Rs.4500, and she was directed to do so before 25.7.1990–She did not abide by her undertaking and did not comply with direction of Court–She was thus guilty of contumacy–Held: Impugned order is not susceptible to interference in revisional jurisdiction–Petition dismissed. PLJ 1994 Lahore 9 Question of Court fee raised for first time in appeal–District Judge returned memo of appeal for presentation before High Court on receipt of application U/S. 149 for payment of deficient Court fee–Appeal dismissed–Appeal pending before Supreme Court–Objection before executing Court on point of Court fee–Validity–The moment question was raised before District Judge respondent immediately took steps to secure order for payment of Court fee–It was not his fault that Court did not pass any order thereon–Learned counsel is also not in a position to deny statement made by learned counsel for respondent at Bar that Court fee has in fact been deposited and challans tendered in Supreme Court of Pakistan–Finally the matter is still to be considered by Supreme Court and till such time the said matter is decided the decree stands as passed by learned trial Court and affirmed by High Court–Held: In absence of any restraining order executing Court is bound to execute decree as it is. PLJ 2000 Lahore 2353 Court Fees Act, 1870 is primarily a fiscal measure enacted for benefit of State-Purpose of Act is to recover revenue from those who come to Court to seek justice Such purpose having been fulfilled where plaintiff in obedience to order of Court for annual net profits paid requisite amount of court-fee-Question of limitation became irrelevant and immaterial as such-Plaintiff, held, could not invoke revisional jurisdiction of District Judge and Constitutional jurisdiction of High Court in circumstances -Order passed by trial Court and affirmed by first appellate Court was not open to any exception. P L D 1985 Lah. 474 Revision petition not filed with proper Court-fee under Section 3 of Court Fees Act, 1870–During specified time of 90 days would not be maintainable.PLJ 2003 Karachi 175 Suit having been decreed for a specific amount, appellants were to have known what stamps they had to provide for court‑fee, for the appeal‑‑Judgment, a copy of which was filed with the appeal clearly indicated the amount of decree to be of specified amount for which Court‑fee was payable‑­When lapse on part of appellants was detected it was fairly late and even if the appellants had supplied the stamps, they could not have got out of the bar of limitation‑‑Appellate Court had thus rightly rejected the appeal, on account of non‑payment of court‑fee without requiring appellant to make the payment of requisite court‑fee‑‑No court‑fee had been paid for the revision petition‑‑Flaw of non‑payment thus could not be cured and the same result viz; dismissal of revision had to follow. 1989 C L C 2080 During pendency of appeal Appellate Court did not give any direction to appellant to affix Court fee on memo of appeal–Had appellant failed to affix Court fee as per direction of Court within time specified by Court then appeal was liable to be dismissed–Order of dismissal of appeal without giving specific time to appellant to affix Court fee, was not warranted by law–Case was remanded to Appellate Court to provide specific time to appellant to affix Court fee on memo of appeal and then to decide appeal on merits strictly in accordance with law.PLJ 2003 Peshawar 344
  36. Cross-objection in revision:– Where High Court was seized of the matter in revision, it would have jurisdiction under S. 115 C.P.C. to pass such orders in case as it thought fit to modify judgment of lower Court to correct any error of jurisdiction where lower Court in exercise of its jurisdiction acted illegally or material irregularity. PLJ 1999 SC 1087 = 1999 SCMR 971.
  37. Decision upheld in appeal by first Appellate Court:– Tender floated on behalf of Govt. of Punjab–Province not impleaded as necessary party–Infraction of Section 79 C.P.C.–Effect of–Province of Punjab not impleaded as necessary party, suit filed without issuing notice U/S. 80 and violation of Section 79 & Order 27–Effect of–There was no proper pleading from both sides as plaintiffs have not filed suit against Province of Punjab in compliance with Section 79 and Order 27 of CPC and there was no written statement by verifying same, therefore, no proper issues from divergent pleadings of parties were framed by trial Court under Order 14 CPC–Civil Judge as well as Addl. District Judge has failed to advert to provision of Section 79, Order 27, Section 80, CPC, Order 6 Rule 14 C.P.C.; Section 42 of Specific Relief Act and Order 14 for framing proper issues from pleadings of parties–Held: Civil Judge has illegally passed judgment and decree and appeal has also been wrongly dismissed by Addl. District Judge by exercising jurisdiction which was not vested with it. PLJ 2002 Lahore 877
  38. Delay in refund of bid money for 2 years:– There are concurrent findings of two courts below and there has been no mis-reading and non-reading of evidence on record–Court has decreed specific amount claimed towards profits which ordinarily respondent could have earned on amount which was deposited by him and was delayed in repayment by applicants for 2 years–Respondent though did not claim interest in plaint yet court in the interest of justice would be competent to grant the same as ancillary relief–Revision application dismissed in limine. PLJ 1998 Karachi 37
  39. Departure from requirements of law while delivering judgment:– Appellate Court is under legal obligation to decide each of point involved in matter to which it is seized of must state its reasons for decision arrived at–It should be evident from judgment that appellate Court applied its mind consciously to matters involved in case which enabled court to pronounce judgment–Bare perusal of judgment indicates that appellate court did not take into consideration evidence on record nor did it record any reason for decision pronounced by it–Held: Impugned judgment and decree passed by Majlis-e-Shoora Kalat Division at Mastung is not sustainable in law–Same is set aside with directions to re-write judgment in accordance with law–Petition partially allowed. PLJ 1998 Quetta 95
  40. Deposit of pre-emption money:– Plaintiff (decree holder) failed to deposit pre-emption money on the date fixed by Court–Effect–Modes of paying money under a decree has been described in O. XXI, R. 1 C.P.C., requirements whereof, would be satisfied if proper tender of money was made in time–Where a Court or office was closed on the day when an act was to be performed therein, such act can be performed on the next opening day of the Court or the office–Working hours on target date being 9 a.m. to 12 noon, next day was holiday, therefore, plaintiff could have deposited amount in question, on 10.12.1983–Pre-emption money having not been deposited on that date, there was no tender of purchase money–Plaintiff was thus, disentitled to the benefit of S. 10 of General Clauses Act 1897 as there was no executable decree in his favour on the day when he deposited pre-emption money.PLJ 2004 Lahore 261
  41. Dismissal in limine: – High Court has not been able to find out that Lower courts have misread evidence produced by parties—Since judgments of lower courts do not suffer from any illegality/material irregularity, therefore, this revision petition does not merit consideration and is dismissed in limine. PLJ 1998 Peshawar 157
  42. Dismissal of appeal for non-filing of decree sheet:– Petitioner neither had annexed copy of decree sheet with memo of appeal nor had bothered to seek further time for this purpose–Moreover petitioner had not even mentioned word `decree’ in his memo of appeal–Appeal was incompetent and had rightly been dismissed by Appellate Court–High Court dismissed civil revision. PLJ 2004 Peshawar 240
  43. Ends of justice: – Powers of revision to be exercised with view to sub serve and not to defeat ends of justice. PLJ 1987 SC (AJ&K) 52.
  44. Entitlement of possession through partition:– Courts below on basis of evidence found that partition between pre-decessor of parties was not proved and that plaintiff was not entitled to possession through partition–Finding of Courts below was based on evidence and sound reasoning after having examined and assessed evidence available on record–Authenticity of partition deed was not proved from perusal of evidence–Document purported to be agreement of partition was unregistered and it was not established that the same was ever acted upon or given effect to–Being unregistered document, it did not operate to create any right or title–Apart from that defendants were admittedly not a party to that agreement, therefore they were not bound by it–Concurrent findings of two Courts which were recorded after examining and assessing evidence being based on sound and plausible reasoning cannot be disturbed in revisional jurisdiction. PLJ 2003 Lahore 524
  45. Entries in record of rights whether confer any right/title:– It is a settled principle of law that entries in record of rights do not confer any right/title and carry a presumption and party in whose favour such entries are recorded has to establish its title by adducing evidence–Property in dispute was shown as Shamilat-e-Deh in record of rights and thereafter Revenue Officer without any Order has recorded same in name of respondents–Learned Majlis-e-Shoora wrongly came to erroneous conclusion that respondents are owners of property only on basis of mutation entries which had been challenged by petitioners could not be discarded merely on ground that witnesses had no knowledge about mutation entries in name of respondents in record of rights–Impugned order set aside. PLJ 1998 Quetta 229
  46. Erroneous process:- It is well settled law that where Courts below have arrived at their findings through an erroneous process, their findings even though concurrent, are amenable to correction in revisional jurisdiction. Testimony of Patwari DW-1 has been wrongly disregarded by two Courts below and same has also been misread by lower appellate Court. Evidentiary value of Ex-D/1 has been illegally ignored. Petitioner’s evidence of conduct to prove his relationship with Y has been omitted from consideration in violation of Section 50 of Evidence Act. Lower appellate Court has based its decision on material which does not form part of record. Courts below have acted in exercise of their jurisdiction illegally. Children of a pre-deceased son or daughter of a propositus would be entitled to inheritance in place of such pre-deceased son or daughter. PLJ 2000 Lah. 315.
  47. Evacuee Trust Property (Management and Disposal) Act, 1975: – Land possessed by respondent as allottee/transferee of Provincial Government under cattle breading scheme–Evacuee Trust Property Board/Petitioner interfered with possession–A suit for permanent injunction was filed by respondent- Petitioner resisted suit on ground that land is owned by it and Civil Court has no jurisdiction–Suit decreed–Appeal filed by petitioner dismissed- Challenge to–Whether civil Court had jurisdiction or not–Question of- Petitioner was required first to prove that property was evacuee and then to show that it is a property attached to some charitable religious or education trust–Under Section 8 of said Act question which could be determined by Chairman is “whether an evacuee property is attached to a trust or institution or not? ” Apparently Chairman has no jurisdiction to decide question as to whether property is evacuee or not—Regarding evacuee property law is well settled that jurisdiction to determine existence of facts giving jurisdiction to a Special Tribunal lies with Courts of plenary jurisdiction i.e. Civil Courts–Property is recorded to be owned by Provincial Government both before and after partition of sub continent–Nothing was brought on record to prove that property was evacuee–It was only when property was proved to be an evacuee that further question of its being attached to some religious or other trust could arise–There is, thus, no occasion for decision of question involved- Civil Revision dismissed. PLJ 2000 Lahore 732
  48. Execution of decree: – Application for execution of decree regarding permanent injunction–Dismissal of–Revision against–Petitioner has not been able to point out any illegality or material irregularity in impugned order–Under residuary Article 181 of Limitation Act an application can be filed within three years–This revision petition is also an application which could have been instituted within three years–Period negligently spent by petitioners before Additional District Judge cannot be condoned–Revision petition was filed with delay of three months and 9 days–Petitioners have not cared to file any application for Condonation of delay explaining circumstances which led to institution of appeal before an incompetent forum–Petition dismissed. PLJ 1998 Lahore 567 Rent Controller would execute ejectment order as if it were a decree of a Civil Court—Rent Controller while executing an ejectment order as a Civil Court decree, was vested with all powers as were enjoyed by a Civil Court for effectively executing a decree—Procedural provisions contained in Rr.100 & 101 of O.XXI, C.P.C. were a part of procedural law relating to execution of decree and could be invoked in execution of an order passed by a Rent Controller—Suit filed by the tenant which primarily raised the question that the ejectment was being sought from a property not vesting in landlord was completely barred by S.47, C.P.C. read with O. XXI. R-103, C.P.C.—All questions of title and possession were to be decided by the Court executing a decree and suit was barred—Revision petition arising out of a civil suit filed by the tenant to dilate upon the decision given by the Executing Court and upheld by the Court of first appeal was not sustainable. Haji Abdul Wali Khan and another v. Muhammad Hanif and another 1991 SCMR 2457 /2001 MLD 1621 Objection petition against along with application u/s 35 of Act, 1877 for decision of agreement–Dismissal of–Revision against–Decree passed by trial court required respondents to make deposit of balance amount of consideration which was paid within specific period and as such decree stood fully complied with–Subsequently, deposit was withdrawn (luring pendency of R.F.A. with permission of High Court, granted by D.B. though it was observed at that time that a fresh order about re-deposit of amount would be passed, but it was not done due to an oversight for which respondents cannot, be blamed–An act or omission of Court cannot prejudice any one–As the appellate court had failed to pass any order for re-deposit of amount, it was open to executing court to allow deposit which was essential for purpose of executing decree–If before decision, decree is complied with by decree holder, question of revision of contract would not arise–Petition dismissed. PLJ 1998 Lahore 810 Plaintiff’s suit for possession was decreed for portion of land–Property comprised in suit for possession was act of joint Khata and not specific numbers–Decree in favour of plaintiff was in terms of O. XXI, R. 1 of C.P.C., which was for a share in joint property and not regarding definite property–Symbolic possession, thus, could have been given to plaintiff and he was not entitled to physical possession. PLJ 2003 Lahore 1143
  49. Ex-parte Proceedings/Decree:- Appellate Court has dismissed appeal preferred against impugned order of trial Court dismissal application for setting aside ex parte order on ground that petitioners who were represented by their counsel had knowledge of suit consequent upon setting aside of dismissal order of suit cannot be termed or treated to be substitute of valid service of notice–Learned Majlis-e-Shoora (a court) did not attend to legal aspects of case and erred in law in exercise of jurisdiction vesting in it while passing judgment in light of record of case–Held: Impugned orders were not sustainable–Petition allowed and case remanded for decision in accordance with law. PLJ 1998 Quetta 49 Ex parte decree passed on the date which was not fixed for hearing–Legality–Application for restoration of setting aside ex-parte decree and its restoration was dismissed by trial Court without appreciating that order in question, when ex-parte decree was passed was not date of hearing and no ex-parte decree could be passed on that date therefore impugned judgment/order passed by it was not proper–Appellate Court had rightly appreciated such position and had done substantial justice by setting aside ex-parte decree–Even otherwise disputes must be decided on merits and technicalities should not become hurdle in way of justice–No interference was warranted in judgment and decree rendered by Appellate Court. PLJ 2004 Peshawar 112 There is no plea in written statement, which could be allowed to be proved by petitioner–If defendant fails to deny contents of plaint, than a court is justified in assuming that contents are admitted–Nobody stopped petitioner from joining proceedings–He has to blame himself if he has opted to remain absent–Petitioner was misled into filing civil revision in Court of D.J instead of High Court–This is a case of extreme negligence and no ground of Condonation of delay has been made out—Petitioner dismissed in limine both on merits as well as being barred by time. PLJ 2000 Lahore 645 Passing of ex-parte decree by trial Court–Dismissal of appeal on the ground of limitation–Validity–Setting aside of judgment and decree on payment of reasonable costs–Offer by petitioner–Effect of–Counsel of respondent under instructions of respondent submits that he has no objection for setting aside impugned order subject to payment of reasonable costs–Confronted with statement, counsel for petitioner agree to this course–Held : Suit for recovery shall be deemed pending before Addl. District Judge–Petition allowed and order set aside subject to payment of costs of Rs. 5000/-. PLJ 2003 Lahore 1169 Initial service of summons was followed service through proclamation–Thereafter, case was adjourned and ex parte proceedings were conducted–Petitioners were not in knowledge of subsequent dates–Application for setting aside ex parte decree within three years of ex parte decree in terms of Art. 181 of Limitation Act 1908 was thus, well within time, therefore, dismissal of application for setting aside ex parte decree on ground of limitation was not warranted. PLJ 2003 Lahore 778 Ex-parte proceedings against defendant was passed on the date on which suit was not fixed for hearing–Court had no jurisdiction to proceed against defendant ex-parte on specified date when suit was not fixed for hearing–Defendant should have been allowed to participate in proceeding when he appeared in Court following ex-parte proceedings–Ex parte decree on the basis of ex-parte proceedings was itself void and liable to be set aside–Ex parte decree was set aside and case was remanded to trial Court to commence trial afresh from the date when ex-parte proceedings were taken. PLJ 2004 Lahore 126 Petition for setting aside Ex-parte decree dismissed and decision upheld in appeal–Revision–Concurrent finding of courts below–It, is well settled law that, High Court. Cannot, interfere in exercise of revisional jurisdiction with concurrent. findings of facts unless there is any material irregularity or illegality affecting decision of courts below–Even erroneous decisions on facts are not revisable except as mentioned above–Held : No material irregularity or illegality affecting decision of courts below has been pointed out–Revision Petition not maintainable and is dismissed in limine. PLJ 1998 Lahore 473 Petitioner had failed to explain absence of his two Advocates–None of them appeared as a witness to support petitioner’s contention that his non-appearance was due to illness–It is well settled law that High Court cannot interfere in exercise of revisional jurisdictional with concurrent findings of facts unless there is any material irregularity or illegality affecting decision of courts below–Even erroneous decision of facts are not revisable except as mentioned above–Revision petition not maintainable dismissed in limine. PLJ 1998 Lahore 625 Plaintiffs/ petitioners were permanent transferees of land in question through PTOs issued in 1962 and PTDs issued in 1969 much before mutation No. 771 dated 12-6-1982 issued in favour of Telegraph and Telephone (T&T) Department–Since, the plaintiffs had already got permanent proprietary rights, therefore, land in question was not available for transfer to any other Department and as such transfer in favour of T&T Department was not good in the eye of law–Notices of suits for temporary injunction were issued to all defendants on 29-11-1990 for 9-12-1990, hence, service upon all defendants was complete and since, they did not appear except defendant No. 1, (Federation of Pakistan) therefore, they were rightly proceeded against ex parte–Trial Court rightly observed that not an iota of evidence in respect of fraud was brought on record to show that there was any mis-representation, fraud or collusion in obtaining title deed, by petitioners/plaintiffs–After coming to know about decrees, T&T Department acted in lethargy to file petition beyond limitation period without advancing sufficient reasons of delay–Admittedly Telephone Department was under Ministry of Communication, as such, original suits in the name of Federation of Pakistan through Secretary, Communication were rightly instituted–There was no merit in petitions under 0.9 R. 13 read with section 12(2) of CPC and those were rightly dismissed, but first Appellate court wrongly and arbitrarily set aside ex-parte proceedings and dismissed suits–Revision petitions accepted–Impugned judgment and decree set aside PLJ 1998 Lahore 259 Appellate Court has dismissed appeal preferred against impugned order of trial Court dismissal application for setting aside ex parte order on ground that petitioners who were represented by their counsel had knowledge of suit consequent upon setting aside of dismissal order of suit cannot be termed or treated to be substitute of valid service of notice–Learned Majlis-e-Shoora (a court) did not attend to legal aspects of case and erred in law in exercise of jurisdiction vesting in it while passing judgment in light of record of case–Held: Impugned orders were not sustainable–Petition allowed and case remanded for decision in accordance with law. PLJ 1998 Quetta 49 Petitioners had neither produced oral evidence nor documentary evidence in support of evidence of their solitary witness viz. one of them–Petitioners plea that Court of its own, should have sent documents in question, for comparison to hand writing expert was repelled–Petitioners had to request the Court to send those documents to expert at their expense and not at the expense of state in as much as, in civil suit, expenses are to be borne by party concerned and not by state. PLJ 2002 Lahore 1605 Appellate Court has dismissed appeal preferred against impugned order of trial Court dismissal application for setting aside ex parte order on ground that petitioners who were represented by their counsel had knowledge of suit consequent upon setting aside of dismissal order of suit cannot be termed or treated to be substitute of valid service of notice. Learned Majlis-e-Shoora (a court) did not attend to legal aspects of case and erred in law in exercise of jurisdiction vesting in it while passing judgment in light of record of case. Impugned orders were not sustainable. PLJ 1998 Qta. 49 = 1998 CLC 657. Whether in a suit for possession, trial Court can sit over an earlier decree declaring title of plaintiff with regard to suit Land–Held: Regarding suit land, respondent obtained declaratory decree against predecessor-in-interest of petitioners, which remained upheld in application under Section 12(2), CPC and revision petition filed against it and thus, it attained finality–On the basis of said decree, respondent filed instant suit for possession, which was dismissed ex-parte by trail Court, but was decreed by appellate Court–Held further: Trial Court could not sit over said decree, which could only be set aside by Court of competent jurisdiction–As decree declaring respondent to be owner of suit land still held field, so trial Court was not justified to dismiss suit of respondent by ex-parte judgment, which was rightly set aside by appellate Court–Impugned judgment did not suffer from any illegality or mis-reading of evidence–Revision petition dismissed. PLJ 2001 Lahore 38
  50. Extent:– Petitioner was legally obliged to make out case for exercise of jurisdiction by the High Court–Petitioner must prove that either Appellate forum was not possessed of jurisdiction to decide matter in question or that it had declined to exercise jurisdiction vested in it or that it had acted in exercise of its jurisdiction illegally or with material irregularity–In absence of either of such conditions, High Court/Revisional Forum can ill-afford to reverse findings of Appellate Forum–Provision of S. 115 C.P.C. applies to cases, involving illegal assumption, non-exercise of irregular exercise of jurisdiction–Revision against judgment and decree or Appellate Court being without substance, same was dismissed and finding rendered by Appellate Court were maintained. PLJ 2004 Peshawar 49 Where Appellate Court had failed to consider material evidence and did not advert to the reasons which had prevailed with Trial Court in deciding suit, appellate judgment would suffer from misreading of evidence-High Court to its revisional jurisdiction would be well within its powers to set aside such judgment and restore that of Trial Court’s well-reasoned judgment-High Court’s superintending and visitatorial powers for correction of jurisdictional errors and material irregularities occurring in findings of subordinate Courts, must come into play in appropriate cases-Where glaring instances of non-consideration of material evidence, erroneous assumptions of facts and patent errors of law have been committed by Courts below, High Court must not restrict scope of its jurisdiction and bind its hands. But should interfere, keeping ultimate ends of justice in view. 1995 M L D 45
  51. Extension of Time: – High Court disposing of appeal with observation: if the deposit is not made with in fortnight, appeal shall stand dismissed-Court became functus officious-Cannot extend the time-Even otherwise time cannot be extended in exercise of Revisional jurisdiction-Such jurisdiction-Can only be exercised if case fall with the three clauses of S. 115. P L J 1981 Lahore 95
  52. Failure to file appeal: – Respondents failure to file appeal or cross-objections against definite findings of Courts below that due to non-production of marginal witnesses, document in question, was not proved, would disentitle him to challenge such findings. PLJ 2003 Lahore 402
  53. Failure to submit written statement: – Revision lies from an order pronounced under R. 10, Order 8, Civil P. C. (1908) for failure to file written statement. P L J 1981 Supreme Court 713 If an order is to be passed under Order VIII, Rule 10, CPC, Court has to look into averments of party and see if his claim is based on some footing or not–Order VIII, Rule 10 does not stipulate that whatever relief has been demanded, has to be granted even if not proved from facts and circumstances of case–Held further: Claim for possession with mesne profits could ordinarily be granted, if plaintiff had proved it either through oral or documentary evidence–In either case, evidence has to be brought on record–Only order passed on basis of some oral or documentary evidence could be said a judicious order–Civil Judge had passed a slipshod and mechanical order, which was set aside. PLJ 2001 Lahore 461 On petitioner’s failure to submit his written statement, respondent’s suit for possession with mesne profits was decreed without recording evidence or making any reference to documents filed along with plaint–Decree remained intact in appeal–Held: If an order is to be passed under Order VIII, Rule 10, CPC, Court has to look into averments of party and see if his claim is based on some footing or not–Order VIII, Rule 10 does not stipulate that whatever relief has been demanded, has to be granted even if not proved from facts and circumstances of case–Held further : Claim for possession with mesne profits could ordinarily be granted, if plaintiff had proved it either through oral or documentary evidence–In either case, evidence has to be brought on record–Only order passed on basis of some oral or documentary evidence could be said a judicious order–Civil Judge had passed a slipshod and mechanical order, which was set aside. PLJ 2001 Lahore 461 + PLJ 2000 Lahore 2402
  54. Family Courts Act:- Revision petition against order of dismissal of appeal filed before Appellate Court against order of transferee Executing Court—Maintainability—Special provisions of West Pakistan Family Courts Act, 1964 excluded the general provisions of Civil Procedure Code, 1908—High Court dismissed revision petition as being not maintainable. The State v. Ziaur Rehman and others PLD 1973 SC 49 ref. 2003 Lawvision 21 = PLD 2003 Peshawar 63
  55. Findings must be given by Appellate Court :- Appellate Court being first Court of appeal and final Court of fact had not given any finding at all, decree and judgment rendered by that Court was set aside and case was remanded for decision afresh on merits on all issues, after giving parties opportunity of being heard. PLJ 2003 Peshawar 200
  56. Findings of fact:- High Court after merely considering statement of scribe and other witnesses came to conclusion that execution of sale-deed has been established and thus. substituted its own findings as against finding, of fact recorded by both Courts below. Even if on re-appraisal of evidence, different view could possibly be taken, same was no ground for interference with such findings of fact of two Courts below in exercise of jurisdiction under S. 115 C.P.C.. Two Courts below had given strong reasons for raising inferences against documents on basis of all attending circumstances and such Courts were justified in raising those inferences, therefore. High Court even if had framed its own opinions, different from Courts below, findings of facts, could not even then have been interfered with unless strong reasons had been given to reject inferences drawn by two Courts below. Impugned judgment of High Court was, thus, not sustainable, the same was set aside while those of two Courts below restored with modification that in order to do complete justice appellant, should pay amount of Rs. 10.000/- within two months to respondents/mortgagees who had advanced Rs. 500/- as far back as 1952. PLJ2000SC522 = 2000 SCMR 431.
  57. Former suit:– Plaintiff himself was plaintiff in that suit which was dismissed and order of dismissal was never challenged any further–Plaintiff was thus, bound by such determination irrespective of pleadings of parties therein–Present suit was based on same cause of action and involving same relief–Dismissal of such suit on principle of res-judicata cannot be termed as decision based on technicalities–No interference was warranted in order of dismissal of suit on ground of resjudicata PLJ 2002 Lahore 1435
  58. Framing of Issues:- Remand of case by Appellate Court for framing additional issue and deciding case in accordance with law, assailed–While deciding appeal, Appellate Court had not given any finding on issues already framed although there was sufficient evidence to give findings thereon–Question intended to be resolved by additional issue, could have been gone into by Appellate Court while deciding already framed issue relating to entitlement of plaintiff for declaration–Impugned judgment and decree passed by Appellate court was set aside and appeal filed by petitioners would be deemed to be pending and would be decided on merit. PLJ 2002 Lahore 1946 Issue relating to status of plaintiff as legal heirs of deceased decided by Appellate Court was not further challenged by defendant–Trial Court in post remand proceedings, did not give its -finding thereon–Appellate Court in post remand appeal thus, exceeded its jurisdiction by giving on that issue which had attained finality. PLJ 2002 Lahore 1872 -Plaintiffs could not have any cause of grievance of issues in question, were not discussed and findings thereon were not given. PLJ 2002 Lahore 163 Plaintiff’s assertion that issues formulated in present case do not reflect pleadings of parties which had prejudiced plaintiffs case was not tenable–No vital issue appears to have escaped notice of Trial Court–All those points on which parties were at variance with each other have been reduced into issues framed for trial. PLJ 2003 Peshawar 39 Judgment of First Appellate Court decreeing plaintiff’s suit was assailed to be in violation of mandatory provisions did not decide specific issues at all and did not give any finding either to reverse finding of Trial Court or uphold the same on those issues–Judgment in question, itself was, thus, not sustainable in the eyes of law–Specific issues not decided by First Appellate Court were material issues, however, no finding were recorded thereon, thus, such Court failed to apply its judicial mind to the extent of such issues–Remand of case can be made in exercise of inherent residuary powers under S. 151 C.P.C. where material issues have not been decided by Courts below–Appellate Court was required to set out points for determination, record decisions thereon and give its own reasons for decision in terms of O.XLI, R. 31 C.P.C.–First Appellate Court decided the case without adverting to reasoning of Trial Court at all, therefore, same was not maintainable in the eyes of law–Case was remanded to First Appellate Court for decision afresh in accordance with law– PLJ 2001 Lahore 2.73 Object of framing issues is with view to ascertain real dispute between parties by narrowing down area of conflict and determining where parties differ–Since, in this case both Courts below have failed to appreciate real issue in controversy regarding ownership of suit house Khana Shamari No. 13 both parties claiming ownership, in holding Plaintiffs Nos. 5 to 7, besides owners, as mortgagors under Defendants Nos. 17 to 29, Court below have travelled beyond pleadings of parties–Once specific issue was framed regarding ownership of suit house Khana Shammari No. 13 by plaintiffs 5 to 7 and Defendants 17 to 29 having being alleged to be tenants at rent (Khak Shora) under them, trial Court should have confined itself to spirit of issue so framed–Revision petition accepted and case remanded to decide suit afresh. PLJ 2001 Peshawar 18 Wrong framing of issues would cause great prejudice to Party concerned. PLJ 2002 Lahore 1224
  59. Fraud/collusion in obtaining decree or incompetency of Court to deliver same:– High Court or Supreme Court in view of peculiar circumstances of a given case after re-opening the same may make such observations, which would enable the lower Court to deal with relevant questions requiring further examination in a proper trial including that of nullity. Abdul Majeed v. Abdul Ghafoor Khan PLD 1982 SC 146 fol. PLD 2003 Karachi 314
  60. Frivolous litigation:– Executing Court issued warrant of possession on the application of petitioner under Section 144 of C.P.C.–Order was set aside by Appellate Court directing retrial assailed–Held: A.D.J. had acted carelessly in dispensation of justice and conveniently ignoring that petitioner had been vexed not thrice and so remand order was unessential and unwanted–High Court set aside impugned order while restoring that of executing Court–Court further directed the restoration of possession to petitioner forthwith. PLJ 2004 Peshawar 299
  61. Function as counsel:- Application under Section 20, Arbitration Act, 1940. Dismissal of application in default. Application for resignation was dismissed by Trial Court on the ground that advocate presenting and signing such application was not authorised to do so etc., he had no power of attorney in his favour of file the same. Status. Where counsel who had instituted suit/application had presented the same throughout his preference of function as counsel was not questioned by client, presumption would be that action of counsel in behalf of his client tantamount to ratification by client. Provisions regarding presentation of suit/application on being procedural in nature, non-compliance thereof, could not be intend with extreme penalty. Such defect being irregularity could be vitiated by providing opportunity to concerned party to do so. Rules framed in civil Procedure Code, 1908, however, were made for advancement of justice and they should not be allowed to defeat ends of justice. Defect if any could be cured by amending plaint. Courts could, however, take notice of subsequent events. Application for restoration filed by petitioner would be deemed to be pending which would be deemed in accordance in law. PLJ 1999 Lah. 53 = 1999 MLD 2202.
  62. Gif:- Concurrent findings of Courts below that transaction in question was in fact tamleek and not sale was based on evidence on record and well reasoned–Courts below having discussed total evidence on record rightly recorded finding that transaction in question, being tamleek was not pre-emptible–Judgment of Appellate Court had been recorded keeping in view provisions contained in O.XLI, R. 31 C.P.C.–Entire evidence being available on record, remand of case as claimed by petitioners was not warranted’ especially when High Court itself .had appreciated evidence on record and found concurrent judgment of Courts below to be based on valid reasons. PLJ 2004 Peshawar 143 It has been argued that gifted property constituted that portion of land which had been gifted by mother to daughter–Even if it be so, petitioner was under no legal or moral constraint to had transferred land so gifted to her by her mother:–Held–Learned Additional District Judge had acted with material irregularity to exercise his jurisdiction while proceeding to set aside judgment and decree of learned Trial Court in face of pleadings, evidence and attending circumstances of case–Revision allowed. PLJ 2001 Lahore 661 Gift by Muslim becomes complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession of subject matter by donor to donee takes place–Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer of property by gift would require registration–Held: Gifts made by Muslims in favour of Muslims under Muhammadan Law are expressly excluded from Purview of Chapter VII of Act by virtue of S. 129 Transfer of Property Act–Held further : To complete gift, declaration, acceptance, transfer of possession are required–Neither writing nor registration is mandatory PLJ 1998 Lahore 555 Gift was allegedly existed by donor on 15.7.1995, while donor filed suit for cancellation of same in 22.8.1995 i.e., just after one month and seven days–Gift deed contained Identity Card of donor from Azad Kashmir while he was already retaining Identity Card issued from Rawalpindi–One of the Donees had admitted in his evidence that he got prepared Identity Card of donor from AJ&K–Donor on gaining knowledge of such card got same cancelled–Examination of alleged gift deed was thus, not proved in accordance with law. PLJ 2003 AJK 59 Gift of land in favour of petitioner and sanction of mutation–Share of Respondent No. 1, who inherited ¼ share out of estate of her late father also gifted away to petitioner by her brother–Validity–It is stated that parties have compromised and that Respondent No. 1 had been given land measuring 53 Kanals 7 marls by brothers of lady and she is satisfied–Matter stands explained in very statement of “B” himself–In course of his cross-examination he admitted not out of suit land comprising Khasras No. 188, 189 & 190 he had not given 1/4 share to Respondent No. 1–Reason stated by him was that this land had in fact been purchased by his father for him–Matters are further brought home when he states that he admits that “Z” is entitled to ¼ share in property of his father–Held : Process of law and process of court has been abused by petitioner and his father–Held further : It was in course of evidence that petitioner and his father proceeded to set up case that plaintiff lady had been given her share in suit land–Petition has no force and is accordingly dismissed. PLJ 2001 Lahore 1025 Alienation by last male owner was made in favour of his wife under shariat–Restrictions occurring in said mutation upon the rights of donee were, thus, void–Mutation in question, having been attested in 1932, plaintiff’s predecessor never challenged the same during her lifetime–Suit filed by plaintiff’s on 31.7.1984 was hopelessly barred by time–Appreciation of evidence was lawfully made by Appellate Court in non-suiting plaintiff–No misreading or non-reading was pointed out by plaintiffs counsel. PLJ 2002 Lahore 1499 Gift was allegedly existed by donor on 15.7.1995, while donor filed suit for cancellation of same in 22.8.1995 i.e, just after one month and seven days–Gift deed contained Identity Card of donor from Azad Kashmir while he was already retaining Identity Card issued from Rawalpindi–One of donees had admitted in his evidence that he got prepared Identity Card of donor from AJ&K–Donor on gaining knowledge of such card got same cancelled–Examination of alleged gift deed was thus, not proved in accordance with law. PLJ 2003 AJK 59 Conditional gift in favour of donee by her father who further gifted away property in favour of defendant/petitioner–Donee was limited owner and could not alienate property to anybody else–Ground of challenge by Respondent No. 1 to 4–Validity & scope–Imposition of condition in mutation No. 3387 dt. 7.12.1941 to effect that Mst. “M” was entitled to usufruct of land till her life is void, and she is complete owner of suit land–Instant case is case of transfer of corpus of property as she was handed over possession, so the words ” or are to be treated according to well established principles of Shariah to be ineffective and void, as any condition sought to be attached by donor which is derogatory to passing of exclusive ownership in the donee is treated as void–Gift made remains valid and condition is ignored–Transfer by her by way of gift Mutation No. 1026 dt. 18.8.1973 in favour of defendant/petitioner is absolutely valid–Held: Conclusion arrived at by Courts below is based on misreading and non-reading of evidence which justified interference by High Court–Petition accepted. PLJ 2000 Lahore 127
  63. House given by petitioner to respondent in consideration of marriage: – Suit for ownership filed by respondent decreed by trail Court and decision upheld in appeal–Challenge to–Plea has been taken by petitioner at stage of evidence that house belonged to his brother Shaukat Ali who had purchased same from Saleem Bahar though this was never so stated in written statement and appears to be invention of some able brain at some subsequent stage to nullify fact of document which purportedly conveyed title of house to respondent/plaintiff–Even statement of Shaukat Ali as attorney appears to be self contradictory–He admitted that he knew about present suit since its institution and never made any application to become party in case although allegedly house belonged to him–He had allegedly paid Rs. 17,000/- to Saleem Bahar as consideration of house and that aforesaid Saleem Babar was still alive and nothing was written to complete transaction with Saleem Babar–On contrary, evidence of respondent/plaintiff brought on record is consistent to say that house was given by petitioner/defendant to respondent/ plaintiff in lieu of her marriage–Contents of Exhibit. 1 are clear enough to show that husband has given house to wife on wedding day–Hence its non-registration will not affect proprietary rights of respondent/plaintiffs qua house–Held: There is not any latent or potent defect either in law or with facts so as to interfere with findings of courts below which remain unexceptionable–Petition, being meritless is accordingly dismissed in limine. PLJ 1998 Lahore 677
  64. Illegalities and infirmities: – Decisions of Court below suffer from certain illegalities and infirmities, which resulted into illegal and wrong decision. Revision accepted and case remanded to Trial Court for fresh decision. PLJ 1989 Pesh. 74.
  65. Inheritance:– Suit decreed by trial Court concluding that plaintiffs were entitled to inherit 586/960 share in suit land–Appeal dismissed by Addl. District Judge on ground that suit was not maintainable without seeking relief of possession and also barred by time– Addl. District Judge lost sight of fact that because of failure of revenue authorities to at test mutation upon opening of succession by marriage of “B” further devolution resulting from death of another brother of “S” could not be incorporated in revenue record–Trial Court on basis of admitted entries in pedigree drawn in plaint had proceeded to trace course of said devolution and correctly worked out shares of parties–Plaintiffs were Muslim law co-heirs and as such co-sharers in suit land—They were not bound to sue for possession as possession of one co-owner ensures for benefit of all co-owners–Held: Addl. District Judge had acted without lawful authority for non-suiting petitioner on grounds stated in impugned judgment—Held further Suit was neither barred by time nor was there anything wrong with its form–Civil Revision accordingly allowed. PLJ 2002 Lahore 265
  66. Interference in Revision: – Judgment and decree of Trial Court on basis of evidence on record to the effect that vendor had validly executed agreement to sell, appeared before Sub-Registrar, received sale amount, delivered possession of land in question to defendant and that sale was valid in law was borne out from evidence–No interference in judgment and decree of Trial Court was warranted in circumstances. PLJ 2003 Lahore 434 No misreading or non-reading of evidence is pointed out nor any material irregularity or illegality was committed. No case for interference under revisional jurisdiction is made out. PLJ 1989 Lah. 141. Petitioner stated that his father got land from his nephew through mutation–Petitioner produced Register Haqdaran Zamin for years 1984- 85 pertaining to specified Khasra–In remarks column Patwari has noted said transfer i.e. mutation–No record pertaining to remaining two Khasras has been produced except Khasra Girdwari which pertains to Khasras Nos. 356 and 357—These entries stands rebutted in statement of two Patwaris–Copy of Register Haqdran Zamin for years 1984-85 disclose that total area belonging to “S” comes to 9 Marlas–This includes transaction vide Mutation No. 410–It stands admitted on record that house built by “S” is area of 9 Marlas and is in his possession–Held Impugned judgment of A.D.J. is in complete accord therewith–No ground stands made out for interfered with impugned judgment within meaning of S. 115–Petition dismissed. PLJ 2003 Lahore 1069 Whether there is any justification to interfere with concurrent findings of fact–Question of–Interference by High Court with findings of lower Court is justified only if orders of Courts below were a result of misreading or non-reading of evidence or that they had omitted to consider some material, which was vital for settlement of issues–Held: None of these requirements is answered in present petition–Petition dismissed. PLJ 2000 Lahore 1010 If case could be disposed of on an obvious misapprehension as to legal position or where there was some defect of jurisdiction–Except in exceptional circumstances, no such interference would be justified merely on ground that finding on question of fact was not based on adequate evidence or was erroneous, otherwise it would be against spirit of Section 9 of Specific Relief Act and in effect would convert revision petition into an appeal, which law expressly disallows. PLJ 2000 SC 1894   1983 PSC 158; PLD 1964 Pesh. 157; 16 DLR (WP) 164; PLD 1950 Pesh. 35; PLD 1952 Dacca 89; PLD 1951 Dacca 140; 1991 MLD 1046; AIR 1953 Assam 158; 72 Mad. L.W. 361; AIR 1942 Oudh 179; AIR 1957 Hyd. 4; AIR 1949 Nag. 422; AIR 1926 Mad. 290; AIR 1933 Mad. 609; AIR 1932 Oudh 39; AIR 1937 Oudh 183; AIR 1934 All. 541; 1989 CLC 219; 1989 CLC 219; AIR 1953 Assam 158; 17 Cal. W.N. 501 ref. Interference in revision would be justified, if case could be disposed of on an obvious misapprehension as to legal position or where there was some defect of jurisdiction. Except in exceptional circumstances, no such interference would be justified merely on ground that finding on question of fact was not based on adequate evidence or was erroneous, otherwise it would be against spirit of Section 9 of Specific Relief Act and in effect would convert revision petition into an appeal, which law expressly disallows.   PLJ 2000 SC 1894.
  67. Issue-wise finding not recorded by Appellate Court: – Issues relating to alleged illegality of notice to vacate premises and entitlement of petitioners to decree. of declaration and permanent injunction in respect of property in question, entirely depended on the fate of issue relating to plaintiffs status as tenant under defendant–Finding of Appellate Court that plaintiffs had failed to prove their tenancy was sufficient to non-suited them and separate findings need not have been recorded on such connected’ issues. PLJ 2002 Lahore 163
  68. Judgment, at variance by two Courts below:– Appellate judgment was to be followed unless the same was against record–Appellate Court being Court of facts, exercises same jurisdiction as enjoyed by trial Court and at the time of hearing of appeal entire case opens and such Court can re-apprise evidence and give its own view point in place of one given by trial Court–Judgment of trial Court merges into judgment of Appellate Court–Appellate Courts are normally presided over by comparatively senior judicial officers having more experience to their credit–Judgment of Appellate Court being in consonance with evidence was maintained. PLJ 2004 Lahore 918 Judgment rendered by Trial Court was legal, more apart to facts and circumstances of case and un-exceptionable as compared to judgment rendered by appellate Court which had been passed in complete oblivion of the record of the case and law on the subject and the same calls for no interference by the High Court–Judgment and decree of Appellate Court was set aside, while that of Trial Court was restored in circumstances PLJ 2002 Lahore 1459
  69. Jurisdiction: – Appellate court on application of appellant, and with consent of learned counsel of parties remanded case with direction that legal heirs of one A may be impleaded as party in case, who’s share in property was not under dispute before trial court and against whom no adverse findings were ever given by trial court– Documents which have been produced by petitioner/ plaintiff have gone unchallenged and unrebutted–So far share of A is concerned that in any case is not under dispute and findings of trial court in any case are not adverse to share of A–Appellate court on application of appellant and by getting consent from Advocate for petitioner was pleased to remand case for joining legal heirs of A party to suit, is not sustainable–Moreover order of appellate Court has been passed without considering evidence and documents produced by parties before trial court, order of learned appellate court remanding case with consent of learned counsel of parties, without discussing, analyzing and examining evidence prima facie appears to be without jurisdiction–As regards consent of learned counsel of petitioner it is held that, that admission which is wrong on point of fact or is made in ignorance of a legal right, has no binding effect on person making it–Revision petition allowed. PLJ 1998 Karachi 368 Jurisdiction of High Court while hearing revision petition being purely discretionary, such jurisdiction to be exercised only where it be called for in ends of justice and not otherwise. PLJ1987SC (AJ&K) 52. Dispute in question, was not between owners and occupancy tenants or between occupancy tenants inter se, rather dispute amongst legal heirs of occupancy tenants which can squarely be taken straightaway to civil Court without having recourse to any other proceedings. PLJ 2002 Peshawar 86 Case remanded to trial Court for decision afresh after giving chance to applicants for filing their written statement–Revision against–Original case was filed against Punjab University which has no office at Karachi, hence, case was without jurisdiction–Relief sought was to avoid retirement on 11.8.1995–To be retired from service is one such terms and conditions of service which falls within exclusive jurisdiction of Service Tribunal–Article 212 of Constitution bars jurisdiction of any other Court in relation to terms and conditions of service–Application under 0.I Rule 10 CPC for impleading applicants as defendants was allowed in an unlawful manner as no relief was sought against them–Such application was maliciously filed by respondent–Revision application allowed–Impugned order set aside. PLJ 1998 Karachi 533 Direct revision petition against the order of Civil Judge having jurisdictional value less than Rs.2,500,000, in ordinary course should have been decided by District Judge concerned but because of the connected Constitutional petition and also on account of the concurrence of the counsel for the parties, the same was disposed of by the High Court. 2003 Lawvision 119 = 2003 CLC 462 Judge of Appellate Court had transgressed his limits as revisional Court by going into bona fide of original suit while in fact he was required to decide points involved in petition under S. 12(2) C.P.C. and in case he found any lapse on the part of Civil Judge, in deciding such application within scope of S. 115 C.P.C., he could declare original decree result of fraud played upon Court but he could not go into proprieties of claim in original suit while deciding revision–Judge of Appellate Court having travelled beyond provision of S. 115 C.P.C. and drawing conclusions on presumptions not supported by record, his judgment was declared as unlawful to the extent of rejection of plaint in original suit–Suit would proceed in accordance with law before trial Court. PLJ 2003 Peshawar 13 Jurisdiction u/s 115 C.P.C. applies only to cases involving illegal assumption or non-exercise/irregular exercise of jurisdiction by lower courts–Provisions of S. 115 cannot be invoked against conclusions of law/facts which do not affect jurisdiction of lower courts, no matter, however, erroneous or wrong, decisions might be, either on a question of fact or law, unless decision involves a matter of jurisdiction–If a court has jurisdiction, then in that case, it has jurisdiction to decide one way or other, and erroneous conclusion of law/facts can only be corrected in appeal but a revision will not be competent on such a ground–High Court may interfere where subordinate court has (a) exercised jurisdiction not vested in it or (b) failed to exercise a jurisdiction vested in it, or (c) acted. in exercise of its jurisdiction illegally or with material irregularity–Where these conditions are not satisfied High Court would not interfere in its revisional jurisdiction–Jurisdiction vested in High Court u/S. 115 C.P.C. is discretionary in nature and, therefore, High Court will not interfere under this Section to correct every irregularity in exercise of its jurisdiction except where grave injustice/hardship would result on account of its non-interference. PLJ 1998 Peshawar 218 Jurisdiction under S. 115 C.P.C.–Nature of–Jurisdiction under S.115 C.P.C. was although discretionary in nature yet revisional court would not interfere if it comes to conclusion that substantial justice had been done or where it was shown to satisfaction of Court that petitioner had not come with clean hands–Where, however, it was established that there had been miscarriage of justice on account of the fact that the Courts had acted in exercise of their jurisdiction illegally, findings though concurrent become amendable to revisional jurisdiction of High Court in as much as jurisdiction under S. 115 C.P.C. is primarily meant to correct errors in making orders and proceedings conducted by subordinate courts. PLJ 2000 Lahore 1134 Jurisdiction under S. 115, CPC being of discretionary nature. Same not to be exercised for correcting every irregularity or illegality, such jurisdiction to be invoked only if it be satisfactorily established that subordinate Court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in it or acted illegally or with material irregularity in exercise of jurisdiction. PLJ 1987 Qta. 92. Petitioner had himself invoked jurisdiction of Civil Court against orders of revenue hierarchy with the prayer for setting aside said orders, therefore, after unfavorable decision, petitioner could not be allowed to claim that Civil Court had no jurisdiction to decide his case–Court’s below had jurisdiction to decide civil suits and appeals arising therefrom–Concurrent findings on question of fact or law rendered by Courts of competent jurisdiction, though erroneous, cannot be interfered with in exercise of revisional jurisdiction unless such findings were based on no evidence were arbitrary or perverse. PLJ 2004 Lahore 85 Petitioner was required first to prove that property was evacuee and then to show that it is a property attached to some charitable religious or education trust–Under Section 8 of said Act question which could be determined by Chairman is “whether an evacuee property is attached to a trust or institution or not? ” Apparently Chairman has no jurisdiction to decide question as to whether property is evacuee or not—Regarding evacuee property law is well settled that jurisdiction to determine existence* of facts giving jurisdiction to a Special Tribunal lies with Courts of plenary jurisdiction i.e. Civil Courts–Property is recorded to be owned by Provincial Government both before and after partition of sub continent–Nothing was brought on record to prove that property was evacuee–It was only when property was proved to be an evacuee that further question of its being attached to some religious or other trust could arise–There is, thus, no occasion for decision of question involved- Civil Revision dismissed. PLJ 2000 Lahore 732 Referring to concept of jurisdiction and illegality in context of observations made in case of Kanwal Nairn vs. Patch Khan & others (PLD 1983 SC 53), it is observed that it would cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice results therefrom. Applicant failed to point out any perversity in findings of courts below. If certain document is not considered by Courts below, such omission does not ipso facto justify interference in concurrent findings in-exercise of revisional jurisdiction unless it is demonstrated that documents or evidence kept out of consideration is material or in other words would have led court to contrary view or affected decision on any material particulars of case. PLJ 1996 Kar. 730 = 1996 CLC 333. Jurisdictional error of excess certainly to be amenable to interference and correction in exercise of revisional power by High Court. PLJ 1984 SC 108.
  70. Leave to appear and defend suit: – Defendant’s entitlement to grant of permission to defend suit–Defendant had claimed in his application that plaintiff had prepared forged promote and that he had never received any money from him–Such assertions were enough for grant of leave to defend suit as such assertions could not be determined without holding regular trial–Such observation however, was tentative in nature–Order in question was set aside and application filed by defendant would be treated as application in terms of O.XXXVII R. 2(3) of C.P.C. and would be decided on its merits. PLJ 2004 Lahore 1042 unless exempted or time extended by Court to file same under circumstances of a particular case.PLJ 2003 Karachi 175 Application for leave to appear and defend suit not supported by affidavit–Effect–Though application for leave to appear and defend suit was not accompanied by an affidavit, yet defendant filed same on specified date without objection from petitioner therefore, defect, if any stood cured–Leave to appear and defend suit was, thus, rightly allowed by Trial Court, warranting no interference by revisional Court. PLJ 2003 Peshawar 221
  71. Limitation:- Legal heirs are entitled to inherit from property left by deceased at time of his death–Respondents did not challenge validity of gift executed by deceased in favour of petitioners- They have also admitted relation of petitioners with deceased–There is no document on record to show that petitioners at time of gift, made any relinquishment regarding property in dispute during life time of deceased and even if such a renunciation is made that is not recognized under Muhammadan Law–There is no limitation in inheritance cases and persons claiming inheritance cannot be non-suited merely on point of limitation–Petitioners cannot be deprived of their legal shares, which they are entitled to inherit from estate left by their predecessor-in interest–Impugned judgments set aside–Petition allowed. PLJ 2000 Lahore 616 Manner is which Executing Court had dealt with petition of decree holder is ‘entirely un-warranted in law–Court was supposed to have recorded evidence for and against, itself and should not have delegated such judicial function/obligation to a commission-Provision of O.XXVI, R. 1 of C.P.C. being qualified one lays down certain conditions, none of those existed at the time of passing such order. PLJ 2003 Peshawar 290 Plaintiff’s suit for possession was decreed for portion of land–Property comprised in suit for possession was act of joint Khata and not specific numbers–Decree in favour of plaintiff was in terms of O. XXI, R. 1 of C.P.C., which was for a share in joint property and not regarding definite property–Symbolic possession, thus, could have been given to plaintiff and he was not entitled to physical possession. PLJ 2003 Lahore 1143 Petitioner failed to file any appeal against Judgment and Decree of learned Trial Court but chose to file an Application under Section 12(2) CPC against Respondent which was dismissed and subsequently assailed in time-barred Revision–No plausible explanation was put forth by Petitioner as to why Judgment and Decree passed against her were not appealed–Provision of Section 12(2) CPC are not to be resorted as a substitute of an Appeal–Petitioner herself was very much party to proceedings before Trial Court–It is not her case, she was not, served or that Judgment and decree was obtained behind her back–In case of Muhammad Ismail us. Fazal Zada (PLD 1996 S.C. 246), Plaintiff instead of filing Appeal against order of rejection of Plaint under Order 7 Rule 11 CPC, rushed to High Court with Constitution Petition–Course adopted was not approved by Hon’ble Supreme Court–Learned counsel was not able to meet objection of limitation in filing Revision–Order on Application under Section 12(2) CPC was passed on 21.5,2001 whereas Revision was filed on 29.10.2001. Limitation for Revision as per Section 115 CPC is 90 days from the date of Judgment/Order as case may be–No jurisdictional error has been pointed out–Petition dismissed. PLJ 2003 Karachi 43 Provision of S. 116 was amended in May 1992 whereby period for filing of revision was fixed to be 90 days, but despite that revision was filed after delay of 13 months–Reason for delay that matter was delayed as the Department concerned was awaiting approval from solicitor was not sufficient ground to condone delay of 13 months–Government could not be treated differently than ordinary litigant while considering question us to whether sufficient cause had been shown for Condonation of delay under S. 5 of Limitation Act 1908–Appeal before District Judge having been filed beyond 30 days, had been rightly dismissed–Revision against order in question, was, thus, not competent. PLJ 2000 Karachi 159 It was held by S.C in case Pakistan Vs. Khuda Yar & others that although no limitation has been prescribed by Limitation Act. 1908 or by any rule embodied in High Court Rules and Orders for filing of revision petition yet High Court should entertain revision petition even beyond normal unprescribed period of 90 days if it is satisfied as regards delay in filing revision petition. Revision petition having been filed after about two years against impugned order without any satisfactory explanation thereof and even without any application under S. 5 of Limitation Act for Condonation of delay. PLJ 1998 Lah. 1643 = 1999 CLC 713. It was held by S.C in case Pakistan Vs. Khuda Yar & others that although no limitation has been prescribed by Limitation Act. 1908 or by any rule embodied in High Court Rules and Orders for filing of revision petition yet High Court should entertain revision petition even beyond normal unprescribed period of 90 days if it is satisfied as regards delay in filing revision petition. Revision petition having been filed after about two years against impugned order without any satisfactory explanation thereof and even without any application under S. 5 of Limitation Act for Condonation of delay. PLJ 1998 Lah. 1643 = 1999 CLC 713. Provision of S. 115 was amended in May 1992 whereby period for filing of revision was fixed to be 90 days, but despite that revision was filed after delay of 13 months. Reason for delay that matter was delayed as the Department concerned was awaiting approval from solicitor was not sufficient ground to condone delay of 13 months. Government could not be treated differently than ordinary litigant while considering question as to whether sufficient cause had been shown for Condonation of delay under S. 5 of Limitation Act 1908. Appeal before District Judge having been filed beyond 30 days. Had been rightly dismissed. PLJ 2000 Kar. 159 = 2000 CLC 650. Execution application moved on 3.4.1994, on the face of it was barred by time–As per terms of S. 15 of Limitation Act, 1908, only such period is to be excluded from the period provided for execution application, during which operation of decree, had been suspended by any higher forum–There being no injunction order in favour of respondents, limitation period for filing of execution period which commenced with effect from 3.2.1985, remained running without any interruption till its expiry–Courts below had erroneously given respondents, benefit of pendency of C.P.L.A. before Supreme Court–Mere institution of C.P.L.A. or its pendency without any injunctive order having been passed by Court would not stop limitation period–Impugned order passed is time barred execution application were thus, set aside. PLJ 2002 Lahore 567 Exercise of discretion by High Court in condoning delay of 26 days in filing revision does not suffer from any inherent defect of law, arbitrariness lack of jurisdiction or acting on surmises and conjectures–High Court was fully satisfied with sufficiency of cause shown by respondents in Condonation of delay for vital and sound reasons–No interference was thus, warranted. PLJ 2003 SC 403 Government/statutory bodies were at par with general public under law–Ground mentioned in application that record of petitioners was misplaced was not sufficient ground–Provisions of S. 5, Limitation Act 1908, however, was not applicable to revision proceedings–Revision was, thus, not maintainable being time-barred. PLJ 2003 Lahore 67 Initially, petitioners instead of filing appeal had filed revision in High Court against judgment and decree of trial Court which was returned to petitioners for filing appeal before Appellate Court–Appeal filed before Appellate Court was dismissed as being barred by time–Revision petition earlier filed by petitioners remained pending in High Court and was returned to petitioners when time for filing appeal had expired–Act of Court should not non-suit any party–Revision filed by petitioners was entertained by Officer of Court subject to objection a fixed for orders of Court, if had been returned to petitioners within period of limitation for filing of appeal before Competent forum, would not have become time-barred–Petitioner therefore, should not suffer and be not non-suited for none of their fault–Delay in filing appeal was thus, condonable under S. 5 Limitation Act 1908 and the same was condoned–Appeal filed by petitioners before Appellate forum would be deemed to be pending and be decided afresh, on merits in accordance with law. PLJ 2004 Quetta 62 Previous suit was filed by Aurangzeb who is a proforma defendant in present case for whom relief of prescription is also sought by present petitioners/plaintiffs–Parties are litigating. Under same title- resent petitioners are proforma defendants in previous suit–Matter is fully hit by Section 11 of CPC–By passage of about eight years present petitioners have rejuvenated cause of action by bringing about a change only in name of plaintiffs and by substituting plaintiffs and proforma defendants for each other–Both Courts below have rightly given a decision that present suit is barred- as res judicata-Petition dismissed. PLJ 2000 Peshawar 46 No explanation available on record as to why respondents/plaintiffs did not challenge the entries of Revenue Record right from 1924 or possession of petitioners over the suit property–Suit for declaration under Article 120 of the Limitation Act could be filed within a period of six years-.Suit in hand as mentioned above was brought by the respondents/Plaintiffs after lapse of 71 years of sale and there is no explanation worth name either in plaint or in statement of P.W. 5 as to why the suit was filed after lapse of 71 years. PLJ 2004 Peshawar 125 Record indicated that respondent’s predecessor was not served when case was transferred to Court concerned, therefore, question of his appearance before that Court did not arise–Even if deceased plaintiff was served and was absent on that date on which he was served, such date would not be called date of “hearing”–Word “hearing” means taking of evidence or hearing of arguments or question relating to adjudication of case finally–Case after transfer having been fixed for “appearance” could not have been dismissed for non-prosecution–Order of dismissal of application for restoration being illegal, Appellate Court had rightly restored suit which order was not amenable to interference. PLJ 2004 Peshawar 219 Construction of residential house over plot of land by petitioner without approval of site plan–Prohibitory decree in field–Execution refused by first appellate Court on point of limitation–Validity–Decree granting prohibitory injunction, whether applies by its own force without requiring any execution and whether Art. 181 of Limitation Act has’ wrongly been applied by First Appellate Court–Respondents did not give any threat to petitioner to demolish construction over plot in question–Respondents had rejected site plant of petitioner as directed by trial Court in judgement and decree–Order 21, Rule 32 of C.P.C. applies to injunction both mandatory and prohibitory–There is no ground for non-applying of Order 21, Rule 32 C.P.c. to Case of writ mandamus issued by High Court, if such suit is in nature of merely mandatory injunction issued by Court–Application to enforce decree granting perpetual/prohibitory injunction is disobeyed fresh cause of action arises for which remedy either by mandatory injunction or in some other way has to state for in Suit–Held: It is composite decree, respondents have no lawful authority in view of two decrees in favour of petitioner to demolish construction over plot of petitioner–Respondents are directed to sanction site plan–Petition disposed of accordingly. PLJ 2004 Lahore 1759 Respondent had appeared in response to summons issued and contested suit by filing written statement and thereafter absented–Period of limitation available to respondent for filing application for setting aside ex-parte decree was thus, three years under Art. 181 and not thirty days under Art. 164 of Limitation Act–Application filed by respondent within three years was, therefore, well within time–Law even otherwise envisages determination of disputes on merits and not on technicalities–No material irregularity or any jurisdictional error having been pointed .out, no interference was warranted in impugned concurrent findings. PLJ 2003 Peshawar 305 Findings of Courts below that plaintiffs had become owners due to adverse possession was result of misreading and non-reading of Jamabandi for the specified year and Khasra Girdawari and record of Thal Development Authority, therefore, the same was not sustainable in law and was set aside. PLJ 2004 Lahore 1851 Applicability of S. 5, Limitation Act, 1908 to proceedings under S. 115, C.P.C.–Provisions of S. 5 of Limitation Act, 1908, were not applicable to proceedings under S. 115 C.P.C. in view of provisions of S. 29(2) of Limitation Act as per law declared by Supreme Court in Allah Dino’s case as reported in 2001 SCMR 286. PLJ 2001 Lahore 944 Neither nature of ailment nor duration of same has been mentioned–Such a general statement can hardly be accepted to denude other side of rights having been accrued due to lapse of Limitation–Moreover, Section 5 of Limitation Act has been held to be not applicable to a revision petition filed under Section 115 of CPC. PLJ 2002 Lahore 1177 After deletion of Art. 182 of Limitation Act, execution of decrees are governed by Article 181 of said Act which provides for a period of three years for filing of first application for execution–Execution application having been filed after 11 years was barred by time–By failing to approach within time limitation, prescribed in law, petitioner could not take benefit of his own wrong–Agreement of sale became inoperative, on account of fact that decree had become in executable by lapse of time–Decree was passed against Boota and Miraj, but petitioner has not impleaded Miraj as party in Revision–He did not deposit loan amount, which was deposited by respondents No. 3 to 6 who had acquired interest in property–His conduct does not warrant indulgence even in discretionary jurisdiction–Petition dismissed. PLJ 1998 Lahore 859 Suit could not have been held to be barred by time by Addl. District Judge in vacuum without stating as to which Article of schedule to Limitation Act would be applicable–Thus even if conclusion of Addl. District Judge that petitioners were aware of sale in the year 1965 is deemed to be correct even then suit could not be said to be barred by time and having been brought at point of time beyond were prescribed by law for filing of such suit–This is classic case where evidence as to execution or non-execution of documents, their validity and existence overlapped with evidence required to decide said preliminary issues- Finding of Addl. District Judge being against law and weight of evidence on record is accordingly reversed–Held: Trial Court ought not had undertaken exercise of running of piece meal trial–Writ petition. allowed. PLJ 2002 Lahore 988 Appellate judgment impugned in revision was rendered on 9.5.1993, attested copy where of was supplied to petitioner on 19.5.1993–Revision before High Court was filed on 16.9.1993, whereas period of 90 days expired on 19.8.1993, even if period was computed from date of delivery of copy–Revision petition, thus, was beyond prescribed period of limitation–No justification was brought forth for explaining delay–Revision was, thus, barred by time and not maintainable. PLJ 2003 Lahore 1232 No time of limitation for filing of Revision Petition U/S. 115 of C.P.C. was fixed. However practice had been that it should be filed within 90 days and if there is delay it should be satisfactorily explained, PLJ 1996 SC 1803 1996 SCMR 336. Mis-reading or non-reading of evidence–Question of–No definite date had been fixed by Respondents therefore, date of sale to petitioners as date of refusal to perform, respondents/plaintiffs were well within their rights and time to file suit for specific performance and for avoiding sale mutation–ADJ on due and proper analysis of evidence, validly held that petitioners as subsequent vendees, had knowledge of agreement in favour of respondent/plaintiffs particularly in view of their possession of suit land–No cogent and specific evidence was led by petitioners on bona fide purchase without notice of agreement to sell in favour of respondents/plaintiffs–Counsel for petitioners has not been able to show any mis-reading or non-reading of evidence and also as to show ADJ has committed any material irregularity in rendering impugned Judgment and decree-Held: There is no justification in impugned Judgment and decree passed by ADJ particularly when same is based upon evidence. PLJ 2003 Lahore 870 If a forum is competent to exercise discretion, same is to be exercised judiciously and not arbitrarily. High Court is not debarred to take into consideration whether such discretion was exercised judiciously or otherwise. Held: Question of limitation can be taken into account by High Court suo motu even if not taken up by parties. PLJ 1988 Qta. 44. Impugned order was passed on 13-12.1993, while petitioners application dated 18.12.1993 for grant of attested copies succeeded in obtaining copies on 20-12-1993–Revision filed by petitioner, on 17-3-1994 was barred by two days–Application for Condonation of delay was although submitted yet reason for Condonation contained in the same was not a ground for Condonation of delay–Revision application besides, having been filed beyond period of limitation was incomplete in all respects–Without touching of case, revision was dismissed being barred by time-PLJ 2002 Peshawar 125 Revision petition filed after over 2 years. Even prior to amendment in Section 115 prescribing limitation of 90 days for filing of revision petitions, rule of unprescribed period of 90 days was followed and insisted upon by Courts. Petitioners failed to satisfy Court about delay in approaching it. Delay created equity in favour of Respondents of which they could not be deprived. Delay beyond normal period of 90 days was not condonable in circumstances. PLJ 1994 Lah. 391 = 1994 MLD 308 = NLR 1994 CU 220 = KLR 1994 Civil Cases 313. Whether suit hit. By provision of limitation Act and adverse possession established due to old possession over land–Question of–In preliminary objection of written statement petitioners simply alleged to have become owners because of 40 years old possession–Such possession is never adverse against true owner–Period of limitation began to run from date of dispossession of plaintiff and at most when he purchased suit property on 14.7.1976–Held: Suit having been filed in year 1979 is well within time. PLJ 1998 Lahore 464 It was held by Supreme Court in case Pakistan Vs. Khuda Yar & others that although no limitation has been prescribed by Limitation Act, 1908 or by any rule embodied in High Court Rules and Orders for filing of revision petition yet High Court should entertain revision petition even beyond normal unprescribed period of 90 days if it is satisfied as regards delay in filing revision petition–Revision petition having been filed after about two years against impugned order without any satisfactory explanation thereof and even without any application under S. 5 of Limitation Act for Condonation of delay–Held : Petition is hopelessly barred by time and is not maintainable–Petition dismissed. PLJ 1998 Lahore 1643 Suit in question could not be held to be out of time merely on the basis of an application under O.VII, R. 11 C.P.C. or assertion so advanced in written statement–Question of limitation raised should not have been prematurely decided by learned Courts below–Both Courts below have acted in haste, therefore judgments passed by learned Civil Judge and Learned Addl. District Judge are not sustainable in eyes of law and the same are liable to be set aside. PLJ 2003 Lahore 1624 Under residuary Article 181 of Limitation Act an application can be filed within three years–This revision petition is also an application which could have been instituted within three years–Period negligently spent by petitioners before Addl: District Judge cannot be condoned–Revision petition was filed with delay of three months and 9 days–Petitioners have not cared to file any application for Condonation of delay explaining circumstances which led to institution of appeal before an incompetent forum–Petition dismissed. PLJ 1998 Lahore 567 Return of revision petition for removing defect, and refiling of the same after removal of defects–Effect–Once a suit, appeal or revision had been presented before Authorised Officer of the Court within prescribed period of limitation, the same could not be treated as barred by time, unless party/advocate even after receipt of notice from office failed to remedy the defect. PLJ 2001 Lahore 944 Undeniably appeal filed by respondent was barred by 4 months–Explanation was that decree was concealed which does not appear to be logical because suit was duly contested—Execution proceedings of decree were initiated in which functionaries of respondent had been appearing–They have been asking for time to comply with decree–If subordinate functionaries had failed to perform their duties or web negligent, matter was between authority and its employees and right accrued to petitioner could not condone delay without framing issue or recording evidence–Appellate Court fell in error for condoning delay in filing of appeal without proper inquiry and evidence–Impugned judgment set aside–Petitioner allowed PLJ 2000 Lahore 422
  72. Maintainability:- Revision petition is not properly documented inasmuch as neither copy of notice nor postal receipt have been attached with this petition under first proviso to sub-section (1) of S. 115 an application under sub-section is to be supported by copies of pleadings, documents and order of subordinate court–Petitioners were under a legal obligation to support petition with above mentioned documents–A petition not documented in accordance with requirements, cannot be regarded to have been properly filed–Only disposal of such a revision petition is its dismissal being unsubstantiated. PLJ 1998 Lahore 1187 Revision petition filed by the petitioner against judgment and decree passed by trial court, was objected to on the ground that same ought to have been filed in the district court and not directly in high court, against impugned order contention of counsel for the petitioner was that S. 115, C. P. C had conferred concurrent jurisdiction upon the high court as will the district court. validity section 115, C. P. C. had given concurrent jurisdiction to high court as well as the district court to entertain revision petition against order passed by the courts below Subsection (2) of S. 115, C. P. C. was the provision by which concurrent jurisdiction was conferred upon the district court, but such conferment of concurrent jurisdiction was limited where the amount or value of subject matter would not exceed the limits of its appellate jurisdiction. such being limitation placed upon the district court for entertaining the revision petition, it had no application to the high court, nor such provision would take away the jurisdiction of high court from entertaining the revision petition against the order passed by a court subordinate to it revision petition was maintainable. C. L. C. 120 Decree in favour of respondent (pre-emptors) as for as her superior right was concerned was passed on 21.1.1980–Case was remanded to Trial Court only for limited purpose of deciding only market value of land in question–Judgment of Appellate Court dated 21.1.1980 having been impugned revision against the same was maintainable–No irregularity or infirmity of procedure in impugned judgment having been pointed out, revision against same was dismissed. PLJ 2003 Lahore 1107 Filing of revision petition without power of attorney on behalf of all petitioners—Where the power of attorney on behalf of remaining petitioners was filed subsequently, the defect was cured—Revision was maintainable in circumstances, 2002 Lawvision 140 = 2002 CLC 318 Objections of respondents to maintainability of revision that order in question, being appealable under O.XLII, R. 1, revision against the same was not competent; and that if at all revision was to be filed, the same should have been instituted in the Court of District Judge as the valuation of subject matter for purposes of jurisdiction was fixed at Rs. 400/- were well founded–In exceptional circumstance although revision was maintainable, not withstanding remedy of appeal being available, yet no where in revision petition it had been explained as to what were the circumstances which had obliged petitioners to initially file constitutional petition and subsequently revision petition against order of Trial Court wherein temporary injunction was refused in favour of petitioners–By-passing the forum prescribed by law was not warranted–Even if it be assumed that petitioner had filed revision without first invoking appellate jurisdiction of District Judge, even the revision would not be in High Court as admittedly valuation of subject matter for purposes of jurisdiction was fixed at Rs. 400/- Revision was thus, not maintainable against order of Trial Court. PLJ 2001 Lahore 163
  73. Material irregularity:– Impugned judgments and decrees suffered from material irregularity on the part of Courts–Suits filed by parties would be deemed to be pending–Issue relating to agreement to sell was reframed with direction to trial Court to decide the case afresh in accordance with law after giving opportunity to parties to produce evidence if they so desired. PLJ 2002 Lahore 1224 Trial Court exercising power and discretion with material irregularity. Held: Revisional jurisdiction or purpose of correcting arbitrary exercise of jurisdiction to be fully attracted. PLJ 1984 Lah. 185. Suit for possession filed by petitioner decreed–Suit for specific performance filed by respondent dismissed by trial Court–Decision relating to specific performance upheld while that of possession set aside in appeal–Challenge to–Denial of execution of agreement to sell by petitioner–Effect of–Protection u/S. 53 A TPA–Principles–No agreement was admittedly executed by petitioner lady while her husband had no authority to enter into agreement–Very fact that Addl. District Judge had proceeded to upheld dismissal of suit for specific performance filed by respondent and that respondent has not challenged two judgments and decrees any further, also points to same conclusion–Under no principle of law or equity could lawful owner be estopped from claiming possession of his property–It may be that petitioner lady opted to Honour agreement made by her husband in favour of said other person but it cannot be said that by corollary she can be forced to Honour agreement in favour of her brother by .her husband if she does not consent to do so-=Held : Learned Addl. District Judge has acted with material irregularity in exercise of his jurisdiction while passing impugned judgment and decree–Judgment and decree passed by learned Addl. Distt. Judge is set aside while one dismissing suit for specific performance and decreeing suit for possession restored. PLJ 2001 Lahore 1060
  74. Matter requiring summary disposal: – High Court instead of remanding case to District Judge should have finally decided same as to save time of parties. Supreme Court, further observed, that although there were cases where instead of remanding case to High Court. S.C decided same. But in order to see that precedent is not established for parties to approach S.C in cases requiring summary disposal arising from Rent Restriction Law -and to set practice right, case was remanded to High Court for deciding same finally on question noted by Supreme Court. PLJ 1984SC62.
  75. Meaning, scope and import:– Term “acted illegal “means acting in breach of some provision of law–Phrase “acted with material irregularity” refers to committing of some material error of procedure in course of trial–No breach of any provisions of law or commission of any error of procedure by trial Court in passing impugned order was pointed out–No satisfactory explanation was given by petitioner for not producing documents proposed to be produced at first date of hearing of suit–Order of trial Court rejecting application for production of documents, thus, does not warrant interference. PLJ 2002 Lahore 1767
  76. Minor discrepancies in evidence: – Interference by High Court in exercise of revisional jurisdiction—Scope—-Where appraisal of evidence undertaken by the Lower Appellate Court was perfectly in accordance with the principles settled by the superior Courts in civil cases and the same did not suffer from any legal infirmity, the same could not be interfered by the High Court under S.115, C.P.C. by taking different view of evidence and raising inferences of its own. 2001 SCMR 798
  77. Minors were not represented nor their guardian at litem was appointed:– Judgment and decree against minors challenged on that ground–Subsequently added defendants were not represented due to lack of appointment of their guardian at-litem–No written statement was filed on behalf of minor defendants–Where minor defendant was not represented properly by guardian at-litem, decree obtained against such minor would be nullity in eye of law–Mandatory provisions of O. XXII, R. 3 of C.P.C. having not been followed by Courts below, Judgment and decree passed by Trial Court as affirmed by appellate Court was set aside and case was remanded for decision afresh on merits.PLJ 2003 Peshawar 204
  78. Misreading and non-reading of evidence:- Dismissal of suit for pre-emption on the ground of non-proof of talbs by Trial was decreed by Appellate court–Validity–Trial Court while rendering its finding on issue of talbs discussed in detail evidence brought on record–Appellate court, however, did not discuss evidence to see whether talbs-Muwathibat was sufficiently proved or not and without offering any reason or discussion merely stated that talb-e-Muwathibat was proved-Manifestly judgment of Appellate Court suffers from misreading and non-reading of evidence-Appellate Court had failed to exercise Jurisdiction vested in him–Plaintiff admittedly had knowledge of sale prior to the state when he filed suit for pre-emption–Judgment and decree passed by Appellate Court was set aside while that of Trial Court dismissing plaintiff’s suit was restored. 2002 Lawvision 160 = PLJ 2002 Lahore 252
  79. Mode of making talbs:– One of recognized modes of making talb-i-Ishhad is that same can be made in presence of witnesses at the property sought to be pre-empted–Talbs have been proved by producing witnesses who were named in plaint–None of witnesses stated word about Zarar or Zaroorat–Statement in plaint or notice which of course never reached respondent who admittedly was abroad would be of no avail to petitioner for simple reason that pleadings are not evidence–Notwithstanding fact that original plaintiff died cause of action survived to his L.Rs. who were brought on record and one of them even entered witness box–He opted to remain silent–Held: Findings of Courts below cannot disturbed–Petition dismissed. PLJ 2004 Lahore 1538
  80. Modification in distribution of property:- Modification in distribution of property of deceased between plaintiffs heirs and petitioner defendant worked and by High Court, so as to do competent between the parties–Respective shares of parties as determined by Courts below, however, remained the same–Revision was disposed of with such modifications. PLJ 2002 Lahore 1491 PLD 1962 SC 291; PLD 1981 Kar. 177; PLD 1970 Lah. 391; PLD 1957 Lah. 1040; PLD 1949 Lah. 263; 1982 CLC 976; AIR 1963 A.P. 298; PLD 1949 Lah. 263; PLD 1994 Kar. 135; PLD 1953 Lah. 277 ref
  81. Mutation of Inheritance:- Mutation sanctioned in accordance with Sunni Law by Assistant Commissioner–Appeal filed on plea that decision of matter be made on basis of Shia law dismissed by Addl. Commissioner while disposing of revision petition directed that inheritance of deceased be distributed amongst Respondents/collaterals, to exclusion of “H”–In second round of litigation, suit of “H” decreed by trial Court–First Appellate Court accepted appeal, dismissed petitioners suit and set aside judgment and decree of trial Court–Challenge to–Judgment rendered by District Judge was legal, proper just and he had properly appreciated evidence on record on other hand judgment rendered by. Civil Judge was exceptionable, he had misread evidence on record inasmuch as statements of all PWs had been misread and inferences drawn by Civil Judge were not correct–Held: Judgment of appellate Court maintained in the circumstances. PLJ 2003 Lahore 1066
  82. New Plea:- Negotiable Instrument Act, Ss. 61 to 76–Suit for recovery–Application for rejection of on point of non presentation of promissory note at specified place–Dismissal of–Revision against–Promissory note was executed at Karachi while amount mentioned therein was payable at Lahore–In written statement no specific objection was raised on the plea which was being introduced through an application under 0.7 R. 11 CPC–Petitioner could not possibly raise this plea through back door, no doubt he could amend written statement to raise his plea–If promissory note is not payable at a specified place no presentation is necessary in order to charge the maker thereof–Unless and until any plea is specifically raised in written statement, issue is framed, evidence is led, dismissal of suit could not be applied on an erroneous or any illegal assumption as to non-presentation of promissory note or its effect–Application was nothing but a malafide device to delay case by adopting extraneous methods which could not sustain and was rightly rejected as none of pre-conditions for rejection of plaint was in existence. PLJ 1998 Lahore 794
  83. Non-compliance of provisions: – Judgments and decrees whether by trial Court or Appellate Court must be given in accordance with periphery prescribed by C.P.C. and if that was not followed, judgment and decree would become illegal–Order, XX of C.P.C. speaks of the manner in which judgment has to be pronounced, the way same is to be attested and signed–Court has to express as to how it appreciated evidence adduced by parties and came to conclusion on logical basis–Judgment need not necessarily deal with all the matters in issue in suit but it has to determine those issues, decision whereof would have the effect of adjudicating all matters in controversy, resulting in final disposal of suit- One essential element of judgment is statement of grounds for decision- Final judgment would determine principal matter in question conclusively–Such judgment being judgment in personam should fully determine parties rights and to highlight each and every point under controversy and his own reasons for agreeing with either of parties or those points–Provision of O.XX, R. 5 C.P.C. would reflect that judgment should contain finding on all issues separately unless parties do not rely upon an issue—Provisions of O.XLI C.P.C. provide for methodology of filing of appeal and prescribes form in which memorandum of appeal is to be drawn and presented before Court, it also speaks of grounds which are to be taken in appeal- Rule, 31 of O.XLI C.P.C. provides how a judgment is to be written and what are to be its contents–Where any judgment offends provisions of C.P.C. same would not be acceptable in law and has to be set aside—Two Courts below having not decided case issue wise, same were set aside with direction to decide the same afresh in accordance with law. PLJ 2000 Lahore 610
  84. Non-exercise of jurisdiction by Courts below: – Courts below were influenced by issuance of P.T.O and P.T.D. and refused to exercise Jurisdiction vested in them–First Appellate Court had drawn wrong conclusion that decree in question, relating to sale by allottee being collusive could have only been questioned under S. 12(2) of C.P.C.–Appellate Court was, thus, oblivious of provisions of Art. 58 of Qanun-e-Shahadat 1984–Decree in question, having been passed on void documents was coram-non-judice and liable to be set aside–Judgments and decrees of Courts below were set aside and plaintiff (owners) suit was decreed while that of defendants was dismissed in circumstances. PLJ 2003 Lahore 692
  85. Non-filing of necessary documents:- It is clear from reading of provisions of Section 115 C.P.C. that High Court shall, except reasons to be recorded dispose of such application without calling for record of subordinate court–This course regarding disposal was obviously not adopted and petitioner was directed to place copies on record–It was contended by learned counsel for petitioner that appellate court below attached undue importance to certificate of registration of sale deed, and also misread evidence of petitioner and also her witnesses–Revision petition was admitted to regular hearing for consideration of these points–Learned counsel for petitioner has urged that (i) filing of copies of proceedings in lower courts is for benefit of perusal by court, but it does not invest respondent with any right and (ii) failure is not visited by any penalty particularly so when learned Judge who admitted petition for regular hearing by not insisting on this technicality, in fact condoned it–Held : It cannot be said that filing of revision petition suffered from any delay and lathes remained unexplained–Held further This technical objection is untenable as rules of procedure were meant to advance justice and to preserve rights of litigants but they were not meant to entrap them into blind corner so as to frustrate purpose of law and justice. PLJ 1998 Lahore 1582 Petitioner was required to have filed all necessary documents with revision petition in terms of S. 115(2) C.P.C-Petitioner did not filed document, and even amended plaint was not filed by petitioner alongwith revision petition. Petitioner did not attach agreement executed between him and one of respondents in absence of which High Court could not come to definite conclusion whether he was proper party or necessary party or was proforma defendant. No body should be entitled to get benefit of his own negligence. In absence of documents relied upon by petitioner himself it would be very difficult to determine status of petitioner as agent. Principal, therefore, it would be difficult to determine liability and obligation of petitioner qua respondents. Documents relating to cause of action having not been attached with revision petition, parties inter-se liabilities as also their status as to that were proper necessary or proforma-party would be difficult to determine. Issues having already been framed and case having been fixed for evidence of parties, it would be in interest of parties to avoid multiplicity of litigation, therefore. Trial Court was directed to .conclude trial within specified period. PLJ 2000 Lah. 22 = 2000 MLD 914.
  86. Non-impleading of necessary party: – In suit for possession through partition, one co-sharer was not impleaded as a party–Judgment and decree passed by Courts below in absence of non-impleaded co-sharer was defective and such defect being apparent on the face of record, decree and judgment set aside and case was remanded for decision afresh after impleading co-sharer in suit and to decide the same within specified period. PLJ 2004 Lahore 71
  87. Non-occupancy tenants:– Question relating to conditions of wajib-ul-arz pertaining to such tenants not adjudicated–Courts below having not decided such question, which could have clarified the whole position, case was remanded to First Appellate Court for decision afresh in accordance with observation of High Court. PLJ 2001 Lahore 1000
  88. Non-prosecution of case: – It would be an unfair proposition on part of Court to dismiss suit for non-prosecution. if counsel pleads no instructions–If counsel wants to seek discharge from case then there are proper provisions available which if strictly followed would not lead to a situation where gross injustice may be done to party purely because he is unaware of his case having been fixed in Court–In this matter an affidavit of previous counsel also shows that a letter was written but it remained un-served–On the other hand plaintiff has pointed out that there was a change of address–If this is true then it would be logical that plaintiff would not be aware as to when his case was fixed–It is an acknowledged fact that cases on original side become ripe after years and there would be certain difficulties faced in contacting parties by lawyers–When a lawyer pleads no instructions then instead of dismissing suit it is necessary to issue notice to parties–Under circumstances this revision is allowed–Matter to be fixed for recording of evidence after due notice to both sides. PLJ 2001 Karachi 284 There must be limit to number of adjournments and Court should not be at defaulting party’s mercy to be trifled with impunity–Plaintiff having gained time as last opportunity, not only defaulted in producing evidence but failed to appear also–Just occasion thus, existed for application of O-XVII, R- 3 C-P.C.–Last opportunity having been granted to plaintiff to produce evidence she failed even to appear on the target date–Trial. Court, thus, had no option except to invoke penal provision of law against petitioner–No interference impugned order. PLJ 2002 Lahore 1652 Suit was dismissed for non-prosecution–Application u/Order 9 R.9 C.P.C. was moved for restoration same was dismissed–Appeal before District Judge also dismissed–Challenge to–Contention that justice cannot be sacrificed on the alter of technicalities–Held Petitioners be afforded an opportunity for the decision of the case on merits after recording evidence in the interests of justice as observed by honorable Supreme Court in 1999 S.C.M.R. 971; 1986 C.L.C. 2458; 1993 C.L.C. 1158 and 1992 S.C. 822–Refusal to allow them to produce their evidence would only amount to shutting out evidence and denial of justice on technical grounds–Petitioner accepted. PLJ 2001 Karachi 28 Petition for restoration of civil revision–Held : It is well settled principle of equity that subject to all just exception, cases should be decided on merit–Petition for restoration of civil revision is accepted and civil revision is restored to its original number. PLJ 2001 Lahore 872 Counter-affidavit, non-filing of—Revision was dismissed in absence of the applicant on the ground that the Advocate appearing on his behalf, remained absent—Respondent opposed the application for restoration but filed no counter-affidavit to controvert the pleas raised by the applicant-Dismissal order was set aside and the revision was restored in circumstances. 2001 MLD 1154 Cause list of specified date indicated that revision petition in question, was fixed for hearing wherein name of petitioner’s counsel was duly published–Plea of non-service of notice was thus, of no effect–Petitioner’s counsel had not filed affidavit in proof of other plea that he was out of city on that specified date–Plea of negligent of counsel having not been raised in pleadings was repelled in view of the maxim, “secundum-allegata-et probata”–Sufficient cause for non-appearance of counsel on specified date having not been shown, petitioner was not entitled to restoration of revision petition–Revision petition could not be restored on additional ground that the same was belated and no sufficient cause for delay of six months in filing the same was shown. PLJ 2001 Lahore 1206 PLD 1981 SC 200; 1989 SCMR 479; 1982 SCMR 1229; 1997 SCMR 926; 1997 MLD 175; 1968 SCMR 193; 1970 SCMR 76; 1974 SCMR 162 ref Application for making award as rule of Court. Role of Arbitrator is to settle dispute between parties amicably by avoiding ail types of technicalities of procedural law. to provide a domestic forum for speedy disposal of disputes. It is admitted fact that parties have entered appearance before lower Court and there was no occasion for arbitrator to be present or prosecute conflict. O. IX Rule 9 CPC provides restoration of suit dismissed in default if applicant satisfies Court that there was sufficient causes for his non – appearance when suit was called on for hearing. Power to restore is discretionary and this discretion is judicial. Arbitrator was under impression that he was neither legally bound nor even to peruse application U/S. 14 of Act, 1940 and this impression was legally correct, sound and amount to sufficient cause for restoration of application. PLJ 2000 Lah. 446.
  89. Non-signing of documents by Civil Judge:- Remand of case by Appellate Court only on the ground that documents tendered in evidence and exhibited did not bear signatures of Civil Judge–Non-signing of documents by Civil Judge being mere procedural. Irregularity it was curable and there was no. justification to remand case, on that account alone. PLJ 2003 Lahore 207 Order of remand of case on that account was liable to be set aside–Even otherwise counsel for respondent has no objection if judgment passed by Appellate Court-was set aside–Impugned judgment being not sustainable in law was set aside–Case was remanded to Appellate Court for decision on merits and to dispose of same within specified time. PLJ 2003 Lahore 207
  90. 7 R. 11, and S. 12(2): – Petitioner failed to file any appeal against Judgment and Decree of learned Trial Court but chose to file an Application under Section 12(2) CPC against Respondent which was dismissed and subsequently assailed in time-barred Revision–No plausible explanation was put forth by Petitioner as to why Judgment and Decree passed against her were not appealed–Provision of Section 12(2) CPC are not to be resorted as a substitute of an Appeal–Petitioner herself was very much party to proceedings before Trial Court–It is not her case, she was not, served or that Judgment and decree was obtained behind her back–In case of Muhammad Ismail us. Fazal Zada (PLD 1996 S.C. 246), Plaintiff instead of filing Appeal against order of rejection of Plaint under Order 7 Rule 11 CPC, rushed to High Court with Constitution Petition–Course adopted was not approved by Hon’ble Supreme Court–Learned counsel was not able to meet objection of limitation in filing Revision–Order on Application under Section 12(2) CPC was passed on 21.5,2001 whereas Revision was filed on 29.10.2001. Limitation for Revision as per Section 115 CPC is 90 days from the date of Judgment/Order as case may be–No jurisdictional error has been pointed out–Petition dismissed. PLJ 2003 Karachi 43
  91. Onus to prove: – Inheritance mutation was entered and attested in 1962, but none of heirs of Haji Doctor Allah Yar Khan who all were party to litigation objected to grant of share in inheritance to Mst. Allah Wasai vide mutation till 1986–Silence and conduct of plaintiffs/petitioners and proforma defendants estopped them to object said inheritance–Mst. Allah Wasai was also not sued in her life time–Held: Petitioners have miserably failed at trial to prove factum of divorce between Haji Doctor Allah Yar Khan and Mst. Allah Wasai–Held further Suit has rightly been dismissed by District Judge–Petition devoid of any material consideration is accordingly dismissed. PLJ 1998 Peshawar 28
  92. Oral sale:- Dispute was with regard to oral sale of suit land made by petitioners in favour of one of respondents–Petitioners assailed sale mutation in a Civil suit–Both Courts below had decided matter concurrently against petitioners–Validity–Petitioners failed to point out any illegality or irregularity in exercise of jurisdiction by Courts below–Concurrent findings of fact were also supported by judgment passed by High Court in earlier round of litigation on subject between same parties–High Court declined to interfere with judgments and decrees passed by two Courts below–Revision was dismissed in circumstances. PLJ 2002 Lahore 510
  93. Order of remand of appellate Court assailed:– Order in question was challenged through earlier suit which was withdrawn by plaintiff without seeking permission of Court to file fresh suit–Present suit having been filed on same cause of action, between same parties was barred under O. VII, R. 11(d) of C.P.C.–Merely referring wrong provision of O. II, R. 2 C.P.C. does not mean that present suit was maintainable–Appellate Court committed material irregularity by passing impugned order of remand which was set aside while that of Trial Court rejecting plaint was restored. PLJ 2002 Lahore 2078
  94. Order weather Nullity: – An order passed in violation of provision of law, would not follow that order passed was nullity. It cannot be said that impugned order is nullity, even this order is not illegal as court has jurisdiction to decide matter and it decided application under 0, 7 r. 11 CPC in accordance with law. As per proviso of subsection 1 of section 115 CPC period of 90 days is fixed for filing revision application whereas applicants have filed a revision application after 19 months of order passed by lower Court. No good cause has been shown for condoning delay of more than one year. PLJ 1997 Kar. 351 = 1997 MLD 551.
  95. Parties are bound by their pleadings:– Defendant did not controvert stand of plaintiff on material points in written statement coupled with the facts that even if defendant had controverted contents of plaint in letter and spirit, he failed to prove contents of written statement–Courts below had given concurrent findings against petitioners–Petitioner had failed to bring on record any piece of evidence, which was non-read and misread by Courts below therefore, no interference was warranted in concurrent findings of facts of Courts below–Complained of act of defendant, was not in accordance with law as was evident from the statement of defendant’s own witness–Defendants having failed to bring on record any document to dislodge claim of plaintiff, no interference was warranted in concurrent judgments of Courts below. PLJ 2004 Lahore 513
  96. Partition of property: — Property in question, had already been partitioned and parties were not joint owner of such property–Unity of title and unity of possession is condition precedent for possession through partition–Concurrent finding of fact against plaintiff on basis of evidence recorded by Courts of competent jurisdiction cannot be interfered in revisional jurisdiction. PLJ 2002 Lahore 120 Report in earlier suit between the same parties relating to land in question, was got proved by another of report i.e. Tehsildar who was appointed ‘ as local commissioner in that case–Preliminary decree was fully supported by such undisputed report which is also ‘ supported by available revenue record–Respective shares of parties are to be separated, adjusted and delivered up to both parties for which purpose Appellate Court had directed trial Court to conduct proceedings for final decree–No interference was warranted with impugned order of Appellate Court. PLJ 2004 Lahore 1036
  97. Payment of “Tawaan:– Payment of “Tawaan” for un-authorized’ occupation of land would not be sufficient to term un-authorized possession of property into permissive possession–Plaintiffs thus, had no cause of action, therefore, their plaint was rightly rejected by Courts below calling for no interference in revisional jurisdiction. PLJ 2003 Lahore 150
  98. Pecuniary jurisdiction:– No prejudice was caused to petitioner on merits and there was a fair and full hearing of parties–Trial Court and Appellate Court gave their decision on consideration of merits and evidence in case and no injustice shown to have been resulted in disposal of matter–Executing Court before whom objection as to pecuniary jurisdiction of Trial Court was raised, held, was justified in rejecting objection-­Order of Appellate Court confirming judgment of Trial Court upheld and revision against order of Appellate Court was dismissed. 1989 M L D 1776
  99. Permission to withdraw suit with liberty to file fresh suit:Formal defect” connotes every kind of defect which does not affect merits of case–Revision under S. 115 C.P.C. is competent against order passed under O.XXIII, R. 1 of C.P.C.–Formal defect warranting withdrawal of suit with permission to bring fresh suit was pointed out–Permission to withdraw suit with liberty to bring fresh suit was declined by the Court. PLJ 2003 Peshawar 39
  100. Points and pleas:— Such plea cannot be allowed to be taken in revision. PLJ 2004 Lahore 874 Contentions/pleas raised before High Court in Civil Revision cannot be said to have any fore when those were not pressed before First Appellate Court. PLJ 2004 Lahore 700 Impugned judgment and decree of trial Court being inconsistent with pleas raised was set aside and case was remanded for decision afresh on merits–Trial Court was directed to decide all issues separately except two specific issues, findings whereof, were reversed by the High Court–Trial Court was required to decide the suit in accordance with law as also in the light of observations of High Court PLJ 2’002 Lahore 1133 Points and pleas not raised before trial Court cannot be raised in revision for first time. PLJ 1999 Lah. 216 = 1999 CLC.1.
  101. Powers of High Court:- High Court could suo motu interfere where subordinate Court had exercised jurisdiction not vested in it; or failed to exercise jurisdiction vested in it, or acted in exercise of its jurisdiction illegally or with material irregularity–It was only satisfaction of revisional Court regarding proper exercise of jurisdiction or exercise of jurisdictional illegality or with material irregularity by subordinate Courts where interference could be made PLJ 2001 Peshawar 62 High Court has ample power to see legality or illegality of orders passed by Courts below suo motu under Section 115 CPC. PLJ 2001 Lahore 913 High Court not to interfere simply because of order of subordinate Court being based on incorrect reasons. PLJ 1987 SC (AJ&K) 52. Intervention in such findings when warranted. Concurrent finding of fact based upon proper reading of evidence would not call for any intervention. Where, however, such findings were not based upon proper reading of record those were not immune from examination and correction in revision in supervisory jurisdiction of High Court. PLJ 2000 Lah. 1468.
  102. Possibility of different view:– Where such findings were based on appraisal of evidence, raising of inferences in its discretion could not be interfered with under S.115, C.P.C. merely because different view was also possible to be taken, 2001 SCMR 798 Scope of revisional jurisdiction is restricted and findings of fact cannot be ordinarily interfered with unless it is shown that these are perverse, arbitrary or based on mis-reading or non-reading of legal evidence. By not raising this issue before lower courts, applicant is deemed to have abandoned point taken in his pleadings. Since issue raised at this stage is a mixed question of fact and law it cannot be raised for first time at stage of revision in exercise of jurisdiction u/s. 115 C.P.C, which is essentially meant for correcting errors of law and not for-re-appraisal of evidence. PLJ 1997 Kar. 174 = 1997 MLD 1108. Findings on questions of fact or law, recorded by competent Court, howsoever erroneous, High Court is not authorised to interfere, unless such findings suffer from jurisdictional defect, illegality or material irregularity. PLD 2003 Lah. 389
  103. Powers Of revisional Court:– Powers of revision restricted to cases falling within mentioned categories of Section 115 and cannot be equated with Appellate Court’s powers. PLJ 1979 Kar. 34.
  104. Pre-emption suit:– Leave to appeal was granted by Supreme Court to consider, whether in the facts and circumstances of the case, findings of the Lower Appellate Court on pure question of fact as to Talb-i-Muwathibat could be interfered with under S. 115, C.P.C. by High Court 2001 Lawvision 153 = 2001 SCMR 798 Plaintiffs plea that value of land as mentioned in mutation being inflated, Trial Court erred in directing plaintiff to deposit zar-e-soem of that amount–Process of approximation to fix probable value of property to be resorted if sale price was not mentioned in sale-deed or in mutation–Court in terms of S. 24(1) of Punjab Pre-emption Act 1991, was obliged to require plaintiff to deposit 1/3rd of sale price of property in cash within 30 days; proviso thereof, however empowers Court to fix probable value when sale price was not mentioned in sale-deed or in mutation or when price so mentioned appeared to be inflated–Official documents such as sale deed or mutation authenticated by public functionaries have presumption of correctness therefore, same could not be disregarded mere by on assertion of non-party to transaction–Order in question, was passed in presence of counsel for plaintiffs also raised no objection before Trial Court that price so mentioned in mutation was inflated–Court in terms of S. 27, Punjab Pre-emption Act 1991, was empowered to determine market value of land in question through detailed enquiry when parties concerned get opportunity to prove their respective pleas–Plaintiff notwithstanding compliance of order under S. 24 of the Act i.e., deposit of zar-e-soem, can prove that market value was different than the one mentioned in sale-deed or mutation–As for deposit of zar-e-soem Court has to resort to sale-deed or mutation when value of land was mentioned therein–Order of trial Court directing plaintiff to deposit zar-e-soem in accordance with price. mentioned in mutation was, thus, in accordance with law, warranting no interference. PLJ 1999 Lahore 1803 Plaintiff could not prove that he had made Talb-i-Muwathhat–Trial Court dismissed plaintiff’s suit on this count–Order of dismissal of suit was maintained by appellate Court–Validity–Mutation was sanctioned on 9.1.1992–According to PW-3, real brother of pre-emptor, he intimated pre-emptor during month of February, 1992 while according to statement of pre-emptor, he came to know about sale during month of March, 1992–This contradiction is enough to establish that Talb-i-Muwathbat was not effected–Through use of weapon of cross-examination, respondent-vendee has succeeded in bringing said assertion of pre-emptor about Talb-i-Muwathbat to lame conclusion–Held: Impugned judgments and decrees of lower courts are unexceptionable and no irregularity has been found therein—Revision Petition has no merit which is also barred by time and is accordingly dismissed PLJ 1997 Lahore 1550 Revival of proceedings in suit dismissed between 1.8.1986 and 28.3.1990 possible only if plaint disclosed, firstly, that plaintiff claimed right of pre-emption on any of grounds available to him under (new) Punjab Pre-emption Ordinance/Act, and secondly he had made Talb-i-Ishhad–No averment regarding talb-i-Ishhad was made in plaint–Similarly Zaroorat or avoidance of Zarar was not asserted–Held: Essentials for exercise of right of pre-emption under new law being absent in plaint itself, revival of proceedings would be a mere exercise in futility. PLJ 1994 Lahore 391 In order to decide application for revival of proceedings only plaint in its existing form has to be looked into—Any amendment of pleading would only promote falsehood–Held: Amendent of plaint at his stage would have strong potential of promoting falsehood. PLJ 1994 Lahore 391 Suit decreed on 28.9.1986–Additional District Judge allowed appeal and set aside decree on ground that no decree in pre-emption suit could be passed after 31.7.1986–Petitioners filing application for revival of appeal and decision on merits–Application dismissed on ground that Ordinance XVIII of 1990 had lapsed–Held: There was an unbroken continuity in life of Ordinances regarding pre-emption and order of Additional District Judge, therefore, was not sound in law. PLJ 1994 Lahore 391 PLJ 1986 SC 576 and PLJ 1988 SC 224 rel. Findings of Courts below relating to transaction in question as also of talb-i-Ishhad being result of complete misreading of evidence were set aside–Suit for possession through pre-emption was decreed with direction to plaintiff to deposit remaining sale price within one month after receipt of order of High Court. PLJ 2003 Lahore 446 Amendment of plaint to add “Zaroorat”–G rant of permission for amendment–Revision against–Dismissal of–Challenge to–Effect of omission of sub-sections (2), (3) and (4) of Section 115 CPC by Ordinance is that District Court stands denuded of powers of revision and as such it cannot proceed to decide revision petitions pending before it–Held: Order which legally can be passed in pending revision petitions is to return same to be presented before High Court. PLJ 1994 Lahore 200 Whether shortage of deposit of merely thirty paisa’s in pre-emption money justified dismissal of suit for pre-emption ; and (ii) whether on strength of authority of this Court in Allah Bakhsh Vs. Umar and another (1994 SCMR 1129) suit brought by respondent against petitioners was competent in view of bar contained in Section 47 of the Civil Procedure Code–Leave to appeal is granted to consider these questions–Granted–Leave to appeal. PLJ 1996 SC 410
  105. Pre-requisites:– It is well settled law that High Court cannot interfere in exercise of revisional jurisdiction with concurrent findings of facts unless there is any material irregularity or illegality affecting decision of courts below–Even erroneous decisions on facts are not revisable except as mentioned above. PLJ 1998 Lahore 835 PLJ 1987 SC 288, PLD 1986 SC 88, PLD 1983 SC 53 ref.
  106. Presenting the written statement:- Second proviso to O.VIII, R. 1 C.P.C. containing words “that not more than two adjournments shall be granted for presenting the written statement”–Connotation–O.VIII, R. 1 of C.P.C. as amended would indicate that defendant has not to file written statement on being asked by the Court but has to present the same before first hearing or within such time as the Court would permit–Discretion of Court to allow more than two adjournments has been curtailed–Record indicated that after completing presence of parties Court had ordered for the first time that written statement be filed on 20.12-2001–Written statement was not filed on that date, therefore, adjournment was sought which was allowed and case was posted for 17.1.2002 for filing of written statement–Written statement was not filed on 17.1.2002 and second adjournment for 27.2.2002 was allowed–Thus, only two adjournments on dates 20.12.2001 and 17.1.2002 were granted which were covered by second proviso to O-VIII, R. 1 of C.P.C.–Civil Courts, for strict compliance of second proviso to O.VIII, R. 1 C.P.C., would have to spell out purpose for which they were calling defendant before Court, while ensuring that defendant gets all his documents for filing written statement within the periphery of second proviso to O.VIIl, R. 1 of C.P.C. no interference was warranted in filing of written-statement after two adjournments. PLJ 2002 Lahore 1646
  107. Principles of lis pendens and res judicata:– Question of title was decided between parties by Supreme Court in earlier round of litigation–Supreme Court-had decided in favour of respondent subject to payment of balance amount–Petitioner failed to bring on record any document to show that respondent did not deposit balance amount within stipulated period as prescribed by Supreme Court in earlier judgment–Both Courts below had thus, rightly come to conclusion in subsequent suit filed by petitioners that respondent had become owner in possession of house in question–Petitioners were basing their title on a decree which was secured by them during pendency of litigation either before High Court or before Supreme Court–Courts below had thus, rightly given finding of fact that petitioners decree was hit by principle of lis pendens–Petitioners were parties to proceedings in earlier round of litigation which was finalized between parties by Supreme Court–Petitioners did not point out decree secured by them either before High Court or Supreme Court–Both Courts were thus justified to non-suit petitioners–Once matter had been concluded upon Supreme Court, then Civil Courts had no jurisdiction to re-open same on principle of res-judicata.PLJ 2003 Lahore 210 Although no period of limitation is provided for filing revision application in High Court but it can only be filed within a reasonable time. Lapse of time over 12 months was not explained. Revision beyond reasonable period. PLJ 1993 Kar.124. Delay in filing of revision petition was condoned by High Court in circumstances. 2003 Lawvision 136 = 2003 C L C 1452 Judgment of trial Court though appealable but no appeal filed within prescribed period of limitation instead revision filed after lapse of seven years before District Judge—Revision petition not maintainable and order of District Judge calling for record of case decided by subordinate Court, without jurisdiction. P L J 1980 Lahore 341 There is no period prescribed for filing a civil revision but it is to be filed diligently within a period of 90 days. It can be filed after expiry of 90 days provided a case for Condonation of delay is made out. High Court can exercise revisional jurisdiction suo motu at any time without being bound by any period of limitation provided it fosters cause of justice. Ground that Government takes longer period than a private litigant is not sufficient to condone delay. PLJ 1995 SC 11 = 1994 SCMR 833. Revision petition filed after over 2 years. Even prior to amendment in Section 115 prescribing limitation of 90 days for filing of revision petitions, rule of unprescribed period of 90 days was followed and insisted upon by Courts. Petitioners failed to satisfy Court about delay in approaching it. Delay created equity in favour of Respondents of which they could not be deprived. Delay beyond normal period of 90 days was not condonable in circumstances. PLJ 1994 Lah. 391 = 1994 MLD 308 = NLR 1994 CU 220 = KLR 1994 Civil Cases 313. It was held by S.C in case Pakistan Vs. Khuda Yar & others that although no limitation has been prescribed by Limitation Act. 1908 or by any rule embodied in High Court Rules and Orders for filing of revision petition yet High Court should entertain revision petition even beyond normal unprescribed period of 90 days if it is satisfied as regards delay in filing revision petition. Revision petition having been filed after about two years against impugned order without any satisfactory explanation thereof and even without any application under S. 5 of Limitation Act for Condonation of delay. PLJ 1998 Lah. 1643 = 1999 CLC 713.
  108. Producing of documentation:– There is no doubt that according to section 115(1) C.P.C., petitioner is under legal obligation to support his petition with pleadings, documents and orders of subordinate court failing which petition is liable to be dismissed–Matter has been settled by Apex Court of country in Riasat Ali vs. Muhammad Jaffar Khan and 2 others (1991 SCMR 496) where it has been held that if court can call for record itself, there is no bar to court adopting more easier and speedy option of directing party to make good certain copies of pleadings, documents or orders which are relevant and have been so filed–Rule in any case is not founded in terrorem, to be visited invariably with dismissal of revision petition at very first hearing on slightest violation of rule by party filing petition–Held : Appellate Court has acted in exercise of its jurisdiction illegally and with material irregularity and has failed to exercise jurisdiction so vested in it in accordance with law–Matter remanded to appellate court to decide same in accordance with law. PLJ 1998 Lahore 880 Discretion of Court–Provision of O. VII, R. 18(1) postulates that any document which ought to be produced in Court by plaintiff with plaint was to be presented and if the same was not so produced, such document would not be received in evidence without leave of the Court—Discretion has, thus, been given to Court to receive document at subsequent stage even under R. 18(1) O. VII, C.P.C.–Sub-Rule (2) of R. 18 of O. VII C.P.C., however, seems to be exception to general rule which provides that nothing therein would apply to documents, which were to be produced in answer to any case set up by defendant–Plea of waiver having been raised by defendants in their written statement plaintiff had no reason to produce relevant document to relevant plea of waiver along with the plaint–High Court under S. 155 C.P.C. can suo-motu correct illegal exercise of jurisdiction by Court below–Supreme Court also has inherent powers under O.XLIII, Rr. 1 to 5 Supreme Court Rules to do complete justice–Order passed by Trial Court declining to admit documents on behalf of plaintiffs, was thus, illegal exercise of jurisdiction which has to be set at naught–Order of High Court was, thus, maintained in circumstances. PLJ 2000 SC (AJ&K) 161 Application seeking production of documents was not accompanied by documents sought to be produced–Ignorance of law or the fact that party concerned was illiterate was not a good ground for non-compliance of law–Provision of O. XIII, R. 1 of C.P.C. being mandatory documents relied upon should have been produced at the time of hearing–Object of O.XIII of C.P.C. is to obviate possibility of presenting forged or suspicious documents by parties at a later stage of proceedings–Trial Court had thus, rightly rejected defendants’ application for production of document at the fag end of trial. PLJ 2003 Quetta 134 Document of alleged acknowledgement of loan amount though attested by two marginal witnesses, yet such witnesses were not produced in proof of acknowledgment in question–Petitioner having denied execution of acknowledgment, respondent was under obligation to prove through producing of cogent evidence that in fact document in question, was signed and executed by petitioner in presence of marginal witnesses–Document in question was, thus, not proved for non-production of marginal witnesses. PLJ 2003 Lahore 402
  109. Proper Forum: – Revision petition filed in High Court instead of filing the same before District Judge. As per normal and usual practice matter must be instituted before the Court of lowest grade and the same practice has to be followed in respect of revision which must be instituted before District Judge. Once High Court had, however, taken cognizance of revision, jurisdiction of inferior Court would be ousted. Where revision was admitted for hearing by predecessor Court and remained pending since then, order of S.C for its disposal within time frame, same could be heard and disposed of by High Court. Impugned order of trial Court which was in derogation of remand order of S.C was set aside, while amendment application moved by vendees was allowed and case was sent back to Court concerned for proceeding with the same in accordance with law. PLJ 2000 Lah. 1064 = 2000 MLD 1581. Revision petition filed in High Court instead of filing the same before District Judge. As per normal and usual practice matter must be instituted before the Court of lowest grade and the same practice has to be followed in respect of revision which must be instituted before District Judge. Once High Court had, however, taken cognizance of revision, jurisdiction of inferior Court would be ousted. Where revision was admitted for hearing by predecessor Court and remained pending since then, order of S.C for its disposal within time frame, same could be heard and disposed of by High Court. Impugned order of trial Court which was in derogation of remand order of S.C was set aside, while amendment application moved by vendees was allowed and case was sent back to Court concerned for proceeding with the same in accordance with law. PLJ 2000 Lah. 1064 = 2000 MLD 1581.
  110. Publishing of libel: – Striking off defence and decreeing money suits by trial Court–Dismissal of Application under Order IX, Rule 13 C.P.C. by trial Court and appeals by Appellate Court–Challenge to–Order for filing of written statement in routine and order requiring defendant to file written statement–Meaning and distinction–There is nothing on record to show that learned trial Court had required petitioner to file written statement as held in case of Sakhawat-ud-Din–Any routine order stating that written statement be filed cannot be interpreted to mean an order requiring defendant to file written statement–Learned trial Court had proceeded in manner as if it was under impression that judgment had to be pronounced by way of penalty for non filing of written statement–Held : Learned Courts below had acted with material irregularity in exercise of their respective jurisdiction while passing impugned judgments and decrees–Civil revisions allowed. PLJ 2001 Lahore 528
  111. Re-appraisal of evidence: – High Court can undertake re-appraisal of evidence, if it finds that there was gross misreading of evidence or ignoring of material evidence by trial Court or appellate Court. If two Courts below are at variance, then High Court would be justified in re-appraising evidence, if appellate Court while recording divergent view on issues involved had not at all adverted to evidence and had only reversed finding without pointing out relevant evidence on those issues. PLJ2000 SC 1939. High Court can undertake re-appraisal of evidence, if it finds that there was gross misreading of evidence or ignoring of material evidence by trial Court or appellate Court–If two Courts below are at variance, then High Court would be justified in re-appraising evidence, if appellate Court while recording divergent view on issues involved had not at all adverted to evidence and had only reversed finding without pointing out relevant evidence on those issues. PLJ 2000 SC 1939 First Appellate Court has a right to come to different conclusion by re-appraisal of evidence–High Court could not interfere such conclusion under Section 115 unless it finds some jurisdictional defect or any material irregularity–Petition dismissed. PLJ 2004 Lahore 668 Courts below have acted in disregard of law and well settled principle relating to appraisal of evidence as a result whereof they have reached at patently wrong conclusion resulting into miscarriage of justice–Such findings were not immune from corrective process of High Court under S. 115 C.P.C.–Impugned judgments were set aside and plaintiff’s suit was decreed. PLJ 2003 Peshawar 346 First Appellate Court is well within its’right to re-appraise evidence on record and reverse findings of trial Court–High Court has very limited jurisdiction to reverse findings of First Appellate Court in revisional jurisdiction unless and until the same was result of mis-reading and non-reading of record or any violation of principle laid down by superior Courts–There being no infirmity or illegality in judgment of First Appellate Court, the same was maintained. PLJ 2004 Lahore 291 If it finds that there was gross misreading of evidence or ignoring of material evidence by trial Court or appellate Court. If two Courts below are at variance, then High Court would be justified in re-appraising evidence, if appellate Court while recording divergent view on issues involved had not at all adverted to evidence and had only reversed finding without pointing out relevant evidence on those issues. PLJ2000 SC 1939.
  112. Reasons: – Appellate Court disposed of appeal without passing a speaking order and discussing evidence produced by respondent—Appellate Court did not give any reason for its decision as required by provisions of O.XLI, R.31, C.P.C.—High Court accepted revision petition, set aside impugned judgment and remanded case to Appellate Court for its decision afresh within specified time. Askar Ali and others v. The State PLD 1959 SC (Pak.) 251 and Muhammad Tufail v. Mst. Sardar Bibi and 2 others 1998 CLC 1969 rel 2003 CLC 504 Decree in suit granted in favour of respondents, after closing evidence of petitioners/defendants in terms of O. XVII, R. 3 C.P.C. assailed–Appellate Court while upholding Judgment of trial Court did not apply its independent mind–Appellate Court in fact, countersigned finding of trial Court–First Appellate Court although mentioned contentions of both parties but did not discuss the same–Court has duty and obligation to decide controversy between parties with reasons–First Appellate Court has to apply its independent mind and should not countersign findings of trial Court. PLJ 2003 Lahore 1586 Findings recorded in appeal, assailed–Appellate Court while disproving of four appeals did not state a single reason as to why he was agreeing with trial Court–Judgments and decrees of Appellate Court being not in accordance with law were set aside–All the four appeals filed by the petitioner would be deemed to be pending before District Judge who would requisition the record and thereafter, either proceed himself or entrust the matter to Additional District Judge who would hear appeals and decide the same on their merits by a speaking order with reasons within specified time. PLJ 2003 Lahore 737
  113. Recourse to special hierarchy of Revenue Courts:- Plaintiff without having recourse to special hierarchy of Revenue Courts, filed suit in Civil Court–Plaintiff having failed before Collector and Additional Commissioner, never challenged those order before Board of Revenue–Plaintiffs suit against orders of revenue hierarchy was, thus, in competent and order of dismissal of suit passed by Appellate Court was not amenable to revisional Jurisdiction. PLJ 2003 Lahore 808
  114. Re-Crossing a witness: – Application for further cross-examination allowed by trial Court while matter was pending for final arguments–Challenge to–Whether after closing their respective side by parties, can witness be recalled for further cross-examination and if so under what circumstances–Question of–Even in absence of any express provision at any state of trial or proceedings either on its own motion or upon request of either party may call and recall witnesses for purpose of re-examination or cross examination if dictates of justice and equity so demand–This can be done in exceptional and special circumstances–Central idea being that court has to make endeavors to discover truth–Such powers have been vested in courts under Order XVIII, Rule 17 C.P.C.–Courts can press into service section 151 C.P.C. if such requests are made at instance of parties–Held: Trial Court having jurisdiction in matter has not committed any illegality or material irregularity by passing impugned order. PLJ 1998 Karachi 328
  115. Rejection of plaint: – Appellate Court while deciding appeal exercises all powers of Trial Court and can decide and reject plaint under O. VII, R. 11 C.P.C. as being barred by law–Fresh suit on same subject-matter relating to same cause of action between same parties was barred under 0. VII, R. 11 C.P.C. and same was rightly dealt with by Courts below. PLJ 2003 Lahore 148 Plaint can be rejected only if same did not disclose cause of action or was barred by any law–To invoke applicability of Clause (a) of 0. VII, R. 11 C.P.C., Court has to look into contents of plaint only and would examine plaint on its face value–Where plaint by itself indicates any infirmity enumerated in Clauses (a) to (d) of 0. VII, R. 11 C.P.C., Court must order rejection of plaint in as much as fruitless litigation would require to be buried in its inception to avoid wastage of time of Court and unnecessary harassment of opposite party–Where, however, Court had rejected plaint only on the basis of averment, in written statement and agreement in question, such judgment of Court was not sustainable–Appeal against that order was dismissed without appreciating material on record which had resulted in mis-carriage of justice, therefore, the same was set aside and case was remanded for decision afresh in accordance with law. PLJ 2004 Lahore 560 Where alongwith plaint other documents were available on record which by their own force, upon a reading by Court, can lead to conclusion that suit in question, was bound to fail, then same can be read and considered by Court for purpose of 0. VII, R. 11–Material on record alongwith contents of plaint showed that suit was bound to fail ultimately and to take parties to trial would be fruitless–Rejection of plaint would not call for interference. PLJ 2003 Lahore 24 Petitioners and respondents being co-sharers were in possession of their respective portions–Petitioners in their suit prayed that respondents be restrained from dispossessing them otherwise than in due course of law–Petitioners plaint was rejected under O. VII, R. 11 of C.P.C.–Legality–Each co-owner in deemed to be owner of every inch of common Khata–However, one of co-owners, who was in possession of joint Khata cannot be forcibly dispossessed therefrom–Courts below in impugned order, having illegally rejected plaint their orders were set aside and case was remanded to trial Court for decision on merits–Such order, however, would not precluded respondents from filing suit for partition of joint Khata. PLJ 2002 Lahore 1896 Application for rejection of plaint filed by defendant dismissed–Legality–Perusal of impugned order showed that trial Court rejected defendants application after applying its independent mind–While deciding application under O. XI, R. 11 C.P.C. mainly contents of plaint are to be taken into consideration–Defendant failed to point out any illegality or infirmity in order of Trial Court coupled with fact that issues have already been framed–Statement of plaintiff has already been recorded–Defendant reserved his right to cross-examine him–Such fact indicated that defendant had filed revision petition to prolong case which shows male fide on the part of defendant–Impugned order refusing to reject plaint was maintained. PLJ 2003 Lahore 1492
  116. Relationship: – Admitted facts are that all petitioners are full sisters of last male owner A.D. and respondents are his residues–Judgment of A.D.J. does not suffer from any of defects–Record discloses an intense deliberate effort by petitioners to dis-inherit respondents, who are otherwise entitled to inherit under Muslim Personal Law–A.D.J. has applied correct law, which of course is law of land even now–Petitioners have not been able to point any mis-reading of record–Impugned judgment cannot be set aside by applying law in vacuum–No grounds to interfere with impugned judgment–Petition dismissed. PLJ 2000 Lahore 202 Suit for declaration to effect whether respondents were respectively daughter and widow of Langar and as such were entitled to inherit his estate to extent of 5/8–Suit decreed by trial court and decision upheld in appeal before Addl. District Judge and High Court–Challenge to–Whether concurrent findings of lower Courts below could be interfered by Supreme Court–Question of–This court (Supreme Court) in case of Shahzada Muhammad Umer Beg v. Sultan Mahmood Khan and another has held that revisional jurisdiction under Section 115 P.P.C. is meant primarily for correcting errors made by subordinate courts in exercise of jurisdiction and not those which are made in their discretion unless discretion is found to have been exercised fancifully or arbitrarily–Courts below had concurrently found that respondents were respectively daughter and widow of deceased Langar–Held: Discretion exercised by first Appellate court was neither fanciful nor arbitrary–Petition without any substance is accordingly dismissed. PLJ 1998 SC 1315 Plaintiff claimed to be brother of defendants who in collusion with Revenue Authorities’ had got his name removed from record—One of two defendants admitted plaintiffs claim while other refused to acknowledge him as his brother-Suit dismissed but decreed by Appellate Court.– To deprive plaintiff of his legacy, there was heavy burden on defendant to bring cognent evidence in support of his assertion that plaintiff was born after their mother was divorced—While admitting in his statement before Court that he could produce proof of divorce, defendant tailed to bring any such proof–Evidence on record clearly shoved that plaintiff and defendants were born in wedlock of their father and mother and that their mother was never divorced by their father—Settlement in area was carried out in the absence of plaintiff and non-entry of plaintiff in Settlement Record v ineffective Judgment and decree of Appellate Court was well-reason based on law and deserved to be maintained. PLJ 1997 Peshawar 181
  117. Remand of case by Appellate Court:– Appellate Court has although power to remand any case back to trial Court yet such power is to be exercised when available record was snot sufficient for deciding points of controversy–Where sufficient evidence was available on record and if controversy could be resolved on basis of available evidence then Appellate Court after re-setting issues, if necessary, finally determine suit and question of remand would not arise–Remand on technical reasons keeping in view increasing pendency could not be appreciated–Sufficient material being available on record which stood exhibited on file, on basis of such material Appellate Court could itself decide controversy between parties but the same Was not done–Impugned judgment and decree of Appellate Court was set aside and case was remanded to Appellate Court for decision afresh on basis of material available on record–Appellate Court, however, could allow additional evidence to be produced if the felt necessary. PLJ 2004 Peshawar 198 Private respondents appeal was accepted by Appellate Court and case was remanded to trial Court for decision afresh after making them party in suit and providing them opportunity of being heard–Order of remand by Appellate Court was found to be unexceptional and no illegality or irregularity was committed by Appellate Court in remanding case and decision of same in accordance with law–Order of remand was maintained in circumstances. PLJ 2004 Quetta 73 First Appellate Court forgot to read documentary evidence on record which had been overlooked by trial Court–Evidence on record if had bearing on the case, First Appellate Court should have considered those documents itself for deciding the case instead of remanding the same–First Appellate Court while allowing production of additional evidence became oblivious of the provisions of O.XLI, R. 27 C.P.C. as also conduct of respondents which was reflected in the judgment of trial Court–Tendency of remanding cases to trial Courts without there being reasons for doing so was regretted by the High Court–First Appellate Court while itself came to conclusion that fate of the case was determinable on basis of documents produced, failed to determine the case itself–Addional opportunity for filling up gaps left in evidence at trial stage was not to be permitted–Summary disposal of appeal without writing findings on all the points involved in appeal would call for correction by the High Court in exercise of its revisional jurisdiction–High Court while sitting in its victoria jurisdiction would like to take curative steps in setting aside impugned judgment and remanding the case to First Appellate Court with direction that he may decide the case while keeping in view provisions of O.XLI, R. 31 C.P.C. PLJ 2000 Lahore 2366
  118. Res-judicata: – Earlier suit relating to mutation in question, between the same parties having been decided between the parties upto the High Court and having attained finality could not be re-opened under S. 12(2) C.P.C.–Objection now raised by petitioners, should have been made ground of defence in previous suit which was not done and general objection was raised by petitioners in their written statement that mutation in question, was based on fraud–Resort to civil action for re-opening matter which had been finally decided upto the highest Court was not proper even on new ground of fraud which ground having available was not taken in earlier round–Application under S. 12(2) C.P.C. having been rightly dismissed, no material irregularity or any jurisdictional defect or error warranting interference in impugned order judgment was pointed out. PLJ 2004 Peshawar 200 Question of title was decided between parties by Supreme Court in earlier round of litigation—Supreme Court had decided in favour of respondent subject to payment of balance amount—Petitioner failed to bring on record any document to show that respondent did not deposit balance amount within stipulated period as prescribed by Supreme Court in earlier judgment—Both Courts below had thus, rightly come to conclusion in subsequent suit filed by petitioners that respondent had become owner in possession of house in question—Petitioners were basing their title on a decree, which was secured by them during pendency of litigation either before High Court or before Supreme Court—Courts below had thus, rightly given finding of fact that petitioners decree was hit by principle of lis pendens—Petitioners were parties to proceedings in earlier round of litigation which was finalized between parties by Supreme Court—Petitioners did not point out decree secured by them either before High Court or Supreme Court—Both Courts were thus justified to non-suit petitioners—Once matter had been concluded upon Supreme Court, then Civil Courts had no jurisdiction to re-open same on principle of res-judicata. 2003 Lawvision 188 = PLJ 2003 Lahore 210 Question relating to matter of execution of agreement of association and surrendering their rights to respondent was already considered by High Court in writ jurisdiction which was dismissed–Petitioner after dismissal of writ petition had again re-agitated that matter before Civil Court–Such question being. directly and substantially in issue in writ petition, Civil Court and Appellate had rightly decided that same was hit by principle of res-judicata–No interference was warranted in such concurrent finding of fact- PLJ 2002 Lahore 1842
  119. Respective pleas of parties:– High Court clarified that any view expressed as observation made in any of order would be construed as of tentative nature concerning within an interim interlocutory matter only–Trial Court would be absolutely un-influenced by same in deciding suit on its merits. PLJ 2003 Lahore 78
  120. Return of appeal:– Valuation of suit fixed at Rs. 200.00 by respondents was objected to by petitioners, but it was accepted by trial Court, with the result petitioners filed appeal before District Judge–Appeal was returned to petitioners on the ground that they had asserted in memo of appeal that value of property in dispute was Rs. 1,50,000.00–After receiving memo of appeal, petitioners filed it before High Court, which was dismissed in limine on the ground that it was not competent before High Court–Thereafter petitioners filed revision petition before High Court contending that no party should suffer because of mistakes committed by Court and since an illegality was pointed out, therefore, High Court was not denuded of its power to correct it–Held : Admittedly valuation of suit was fixed Rs. 200.00, which was accepted by trial Court, therefore, appeal before District Judge was competent, but it was erroneously returned to petitioners–Although petitioners had accepted said order, yet it would not make any difference, firstly for the reasons that mistake committed by Court cannot injure any litigant, and secondly acceptance of return by petitioners could not stop them from challenging said order for it is well settled that a suitor cannot be estopped against law–Revision petition was accepted and appeal was remitted to ADJ, to hear and determine it on merits. PLJ 2001 Lahore 87 Return of memorandum of appeal by First Appellate Court, suffered from legal infirmity being in contradiction to requirement of Suits Valuation Act, 1887–First Appellate Court had illegally refused to exercise jurisdiction vested in it–Order for return of memorandum of appeal was set aside by High Court in revisional jurisdiction with direction that same be returned to petitioner for presentation to proper Court. 1986 M L D 606
  121. Reversal of finding by first appellate Court: – First appellate Court has to decide case by applying its independent mind and so can reverse finding of trial Court after meeting reasoning given by civil Court, but where first appellate Court did not advert to such reasoning, its judgment would be deemed in violation of law laid down by Honorable in violation of law laid down by Honorable Supreme Court–High Court set aside judgment of first appellate Court and remanded case back to it for decision afresh in accordance with law. PLJ 2004 Lahore 719 It is well settled principle of law that acts of courts should not be allowed to occasion any injury on suitor. Plain look at provision of section 144 C.P.C. indicates that this embodies principle that nobody shall be prejudiced by act of Courts, that foremost duty of Court is to take care that act of Court does no injury to suitor and when such injury is found by Court on event of variation or reversal of decree, it is duty of that Court to undo wrong and reinstate wronged party to position to which it is entitled. In short, this principle of restitution is attracted where appellant shows three circumstances, namely (i) restitution must be in respect of decree which had been varied or reversed (ii) Party applying for restitution must be entitled to benefit under reversing decree and (iii) relief must in properly consequential or reversal and variation of decree and is not opposed to any other principle of equity. PLJ 1996 Lah. 994 = PLD 1996 Lah. 582.
  122. Revision: – Competency of appeal against such judgement and decree. First appeal would be competent under S- 96 C.P.C. which provides that appeal would be competent only against judgment and decree passed by Court exercising original jurisdiction. District Judge having passed order in question, under revisional jurisdiction, appeal against the same would be incompetent in terms of S.96C.P-C. PLJ2000 Lah. 1217. Revision against concurrent judgments decreeing pre-emption suit. High Court finding that lower Courts in their judgments had not examined evidence on record in its proper perspective. NLR 1988 Civil Pesh. 20; PLD 1988 Pesh. 13: PLJ 1988 Pesh. 12. Revision was a matter between higher and subordinate courts and right to move a petition in that respect by petitioner was merely a privilege–Revision did not confer any substantive right to petitioner, but would apply to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction and same could not be invoked for conclusion of law or fact. PLJ 2001 Peshawar 62 Powers of High Court in revisional jurisdiction under S. 115, Civil Procedure Code are very limited–On reappraisal of evidence, even if different view is possible, High Court cannot substitute its own view and upset findings of facts concurrently arrived at by Courts below–Such findings can only be interfered with if Courts below have misread evidence on record or have committed any jurisdictional error”. PLJ 2001 Karachi 120 Once revisional Court comes to conclusion that order of trial Court suffer from legal defects, under law, can act in the like manner, as the trial Court act–Petitioner dismissed. PLJ 2004 Lahore 779 If tribunals of limited jurisdiction commit error of law, jurisdiction of civil court is always available to correct errors–Case of respondent is that he purchased lands from original owner to whom it was transferred by Evacuee Authorities–He subsequently came to know that it is surrendered land–His further claim is that he was a sitting tenant–Whether he is a purchaser or he is a tenant are two different claims, while claim of applicant is that he is a landless hari–Respondent and applicant have not filed memo of appeal and revision preferred before Additional Commissioner and Colonization Officer respectively–These documents were essential to determine eligibility of parties for disposal of government land–Since that evidence was not available, therefore findings recorded by trial Court and affirmed by appellate Court are with material irregularity apparent on face of record and as such assailable in revisional jurisdiction–Held: Findings of trial Court and appellate Court are conjectural and surmises as such illegal, hence, set aside–Case remanded to trial Court with direction to summon record of authorities which was basis of original order passed by Colonization Officer, appellate order passed by Additional Commissioner and record of Member, Board of Revenue and dispose of case within six months–Revision application allowed. PLJ 1997 Karachi 772 Where findings were not found perverse and glaringly contrary to record, same could not be disturbed in exercise of revisional jurisdiction. PLJ 1999 Kar. 758 = 1999 CLC 798. Revision petition claimed to have been filed against dead persons–Such objection would have no force and was repelled in as much as, respondents had failed to intimate to Court about death of deceased respondents However, if respondents filed correct list of legal heirs of deceased respondents, they would be deemed to be party in revision petition for ends of justice. PLJ 2004 Lahore 133
  123. Revisional jurisdiction: – A finding of fact arrived at by ignoring material evidence or mis-reading material evidence is liable to be interfered with in exercise of revisional jurisdiction of High Court. PLJ 2002 Lahore 823 Proper court fee was not affixed on memorandum of appeal by appellant inspite of suo motu extension of time for affixing court fee by Appellate Court–Dismissal of appeal–Challenge to–Appellant/ petitioner even remained negligent inspite of suo motto extension of time for affixing proper court-fee on memorandum of appeal and this act of appellant can be termed, in the circumstances of case, as contumacious and careless of his duty in affixing proper court fee and learned appellate Court was right in dismissing appeal of appellant on this score–Revision petition dismissed. PLJ 1998 Peshawar 290 Words, “illegality or with material irregularity as used in S. 115(1)(c) C.P.C. have reference to material defects of procedure and not to errors of law or fact, after formalities prescribed have been complied with’-No commission of any error of procedure by courts below having been pointed out, revisional jurisdiction was not warranted. PLJ 2004 Lahore 85 High Court rightly held in revision that Civil Judge erred in not serving notice on respondents as Court below had to set aside exparte order in the circumstances. Jurisdiction could be exercised in spite of concurrent findings of Courts below. PLJ 1979 SC 292. Concurrent findings recorded by two Courts below normally would not be interfered with by High Court in its revisional jurisdiction, however where both Courts below have failed to determine two important issues having direct bearing, over-riding and super imposing effect on all other issues, interference in revisional jurisdiction would become necessary-Primary obligation of Court is to do justice to all and in present case Local Commissioner for local inquiry and inspection ought to have been appointed for clarification of ambiguity due to absence of clear revenue record–Failure to fulfill such obligation, have rendered impugned judgments in vacuum which amounts to failure to exercise jurisdiction–Judgments and decrees rendered by Courts blow were set aside and case was remanded to trial Court for decision afresh after recording fresh evidence, if necessary, and deciding the case afresh. PLJ 2004 Peshawar 278 No material piece of evidence was pointed out which had either been mis-read or non-read by Courts below–Trial Court had embarked upon every aspect of case and while deciding issues had discussed each and every witness and document placed on record–Such findings were not open to exception and had been rightly affirmed by Appellate Court–Material on record had been properly scrutinized and no case for revisional jurisdiction has been made out. PLJ 2004 Peshawar 91 Re-appraisal and re-assessment of evidence cannot be made basis for discarding finding of fact as also the fact that another view of evidence was possible cannot be a ground for interference with concurrent finding of fact–Interference is, however, permissible in revisional jurisdiction with a finding of fact if such finding was found to be suffering from misreading of evidence which had resulted due to non-consideration of important and material evidence and finding was result of perverse appreciation of evidence on record; and the same was based on no legal evidence but on surmises and conjectures–Finding based on inadmissible evidence or procedure which had introduced error or defect in decision and Courts having acted illegally would justify interference in revisional jurisdiction. PLJ 2004 Lahore 1732 When Courts below illegally act in exercise of their jurisdiction, their findings, though concurrent, would become amenable to revisional jurisdiction of High Court— Revisional Jurisdiction of High Court under S.115, C.P.C. was primarily meant to correct errors in making orders and proceedings conducted by subordinate Courts. Samar Gul and others v. Muhabat Khan and others 2000 SCMR 974 ref 2002 MLD 1966 Rejection of application for production of documents is not a case decided, therefore, such order was not amenable to revisional jurisdiction–Revision was thus, not competent against order of rejection of documents sought to be produced at belated stage. PLJ 2003 Quetta 134 Revisional Jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of fact or law not involving question of jurisdiction–There was no jurisdictional infirmity in concurrent Judgments of two Courts below which were assailed in revision–Revision being devoid of merit was dismissed. PLJ 2003 Lahore 798 Two Courts below had not carefully examined evidence produced in the case-Courts only relied on oral evidence and did not at all consider documentary evidence which had material bearing-Concurrent judgment and decree of two Courts below were set aside by High Court, in exercise of its revisional jurisdiction. 2002 M L D 1106 Where Courts below had properly appreciated evidence and law applicable thereto and neither any non-reading or misreading of evidence nor any material irregularity was pointed out, case was not made out for interference in revisional jurisdiction by the High Court. PLJ 2002 Peshawar 7 Lower Courts had appraised entire evidence in accordance with law and had drawn fair conclusion–No illegality or material irregularity causing miscarriage of justice point out–High Court did not interfere in the concurrent findings–Civil revision was dismissed. PLJ 2004 Peshawar 188 Mode to exercise revisional jurisdiction in terms of S. 115 of C.P.C. explained and illustrated.PLJ 2003 Peshawar 39 No error either legal or factual in orders impugned before High Court was pointed out calling for interference–Revision thus, being without merit was dismissed. PLJ 2002 Lahore 1851 Revisional Jurisdiction can be utilized to effect complete Justice and to presume, protect and ensure equitable relief such powers can also be exercised to prevent abuse of process of law and Courts and to remove oppression and maladministration irrespective of fatalities of procedural demands. PLJ 2003 Lahore 681 Parameters of revisional jurisdiction explained and highlighted.PLJ 2002 Lahore 1234 Revisional Court did not consider that respondents were guilty of active concealment of fact shall amount to fraud and misrepresentation sufficient to vitiate decree—Revisional Court also failed to see that entire proceedings were collusive between respective respondents and were directed only for unlawful advantage of specified respondents in order to deprive other legal heirs of their inheritence PLJ 2002 Lahore 1234 Failure of trial Court to frame issues and .examine witnesses in. witness box–Legality–Material contents of plaint stand admitted in particular, factum of partnership as alleged in plaint ,and further admission of terms of partnership deed duly referred to and appended with plaint–This being so, there was no need to record any evidence to pass preliminary decree and this, in fact, is ratio of all judgments cited by counsel for petitioner himself–Where facts stand admitted, there was no need for parties to re-state same in witness box–Auditor has been duly authorized to call for records of Spanish Embassy, finances of suit project as also to obtain record of partnership/Joint Bank accounts–Then instructions have been issued as to contents of said report to be prepared–Held : All requisites of valid preliminary decree in case of instant nature stand fulfilled–Petition without merit is dismissed. PLJ 2004 Lahore 1019 Copy of Khasra girdwari produced by petitioner themselves shows that khasra number subject of suit are not agricultural in nature but have been recorded as “Ghair Mumkan Ahata” and “house” land subject of litigation is already constructed and undeniably in possession of respondents, as co-shares–Predecessor of petitioner had earlier filed suit for declaration and permanent injunction which was withdrawn on 28.7.1998 and present suit.was filed before withdrawal on 24.7.1998 yet its institution was not mentioned which shows that petitioner did not approach Court with clean hands and only want undo construction of respondents, one way or other–Petitioner if are really aggrieved of action mentioned in plaint may have resort to partition proceedings and have their shares separated–Held: Judgments of two Courts below are absolutely in consonance with evidence on life which has not been shown to have misread or non-read in absence of which no interference is permissible under law–Revision petition has no substance in it and is accordingly dismissed. PLJ 2004 Lahore 994 If revision filed is obviously barred by limitation, but then revisional power can be exercised suo motu, when patent illegality is brought into notice of Court–In such case, refusal to exercise revisional jurisdiction would amount to refusing relief to a litigant at the portal of justice, who has remained victim of technicalities of procedure or mistakes of Court. PLJ 2001 Lahore 87 Suit for specific performance filed by respondent decreed by trial Court affirmed in appeal–Challenge to–Failure to implead trespasser in suit, maintainability of suit in presence of arbitration clause, and cancellation of allotment without notice–Effect of–Petitioners have not raised objection qua maintainability of suit in presence of arbitration clause and participated in proceedings is that any objection, therefore, contention of counsel of petitioners in this regard has no force–“B” is not necessary and proper party to resolve dispute in question qua cancellation of plot in question from name of respondent–Plaintiff–Both Courts have given concurrent findings of facts and this fact- was not denied even by petitioners that “B” is trespasser over plot in question, therefore, he was not necessary and proper party and has no right over plot in question being trespasser–Held : Petitioners have passed impugned order for cancellation of plot in question without notice to respondent–Plaintiff, therefore, impugned order is hit by principle of natural justice–Counsel of petitioner failed to bring case within principle prescribed by privy Council & there is no infirmity and illegality in judgments of both Courts below–Petition dismissed. PLJ 2004 Lahore 1483 Appellate Court did not consider salient aspects of case; had set side order of lower Court on extraneous grounds which were not pleaded by any of parties; had failed to apply correct law governing issuance of interim injunction and had thereby exercised jurisdiction illegally and with material irregularity–Impugned judgment reveals that reasons for setting aside impugned order and refusing injunction were that long standing entries of more than 30 years in revenue record in respect of disputed Iand were in favour of Respondent petitioner had admitted in his plaint that impugned mutation had been given effect to in revenue record wherein Respondent is shown as owner and in possession of disputed land and presumption of correctness is attached to long standing entries in record of rights–Nothing was produced before learned appellate Court or before trial Court to show that disputed land was in possession of Respondent as “Mustajar” of petitioner–In given situation it was rightly held by appellate Court that petitioner neither possesses a prima facie case nor balance of convenience tilted in his favour. PLJ 2003 Lahore 955 Appellate Court below in reversing findings of Trial Court had not only misread the evidence on the record, but had also shown ignorance of latest dictums of superior Courts—Appellate Court below exercised jurisdiction not vested in it by setting aside and reversing well-reasoned judgment of Trial Court without any legal and factual justification—High Court, in exercise of its revisional jurisdiction, set aside judgment and decree of Appellate Court and restored that of Trial Court which was based on proper appreciation of evidence and was perfectly in conformity with the latest pronouncement of superior Courts 2001 Lawvision 9 = 2001 CLC 1013 Findings on question of fact or law recorded by Court of competent jurisdiction—Interference by High Court in revisional jurisdiction—Principles—Such findings, howsoever, erroneous those may be, if recorded by a Court of competent jurisdiction, cannot be interfered with by High Court, in exercise of its revisional jurisdiction, under S.115, C.P.C. unless such findings suffer from jurisdictional defect, illegality or material irregularity, N.S. Venkatagiri Ayyangar and others v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 ref. 2002 Lawvision 114 = 2002 CLC 1102 High Court cannot interfere unless there is defect going to jurisdiction or material irregularity in exercise of jurisdiction—Lower Courts having powers to deal with subject matter before them and make decision—Revisional jurisdiction not exercised as matter did not come within purview of cI. (a) or cl. (b). P L J 1980 Peshawar 15 If, a party is joined as a respondent, but is subsequently transposed, would be deemed to be a party right from the beginning—Revision petition having been filed within time, just by transposition of some of the respondents as petitioners, the petition could not be dismissed as being out of imitation. PLD 2003 Lah. 544 Jurisdiction by Addl. D.J. exercised illegally or with material irregularity as doctrine of estoppel was interpreted against established concept-Impugned order set aside in exercise of revision jurisdiction. P L J 1981 Lahore 271 Appellate Court had not only appreciated evidence on record, but had also appreciated law applicable to the case–No misreading, non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in impugned judgment and decree was pointed out–Judgement and decree of Appellate Court was thus, maintained. PLJ 2004 Peshawar 54 Revisional jurisdiction cannot be invoked merely on procedural or technical defects for interfering with order, which otherwise is proper, legal and justified. PLJ 1988 Qta. 64. First Appellate Court dismissed suit of petitioners–Challenge to–Controversial pleadings of parties–Appraisal of evidence–In absence of respondents who were transferees through a joint sale deed, claimed that they had no notice of the mutation in question, suit of petitioners, could not have been decreed–Respondents did not appeal against judgment and decree passed by trial Court, appellate Court could not reverse it without any substance–Petition dismissed.PLJ 2004 Lahore 771 It was pleaded that property was Imam Bargah, which could not be transferred to respondent/plaintiff–It was after filing of suit by respondent/plaintiff: that some steps were taken by petitioner through miscellaneous applications before settlement Authorities to dispute and assail transfer of property–Suffice it to observe that it was such belated move made in year 1983, after repeal of settlement laws, as could hardly yield any positive results–Any attempt made after transfer had become final in favour of respondent/plaintiff and reports secured from defunct settlement Authorities after repeal of laws were also of no effect nor could impair rights so accrued in favour of respondent/plaintiff–Held: View thus formed by appellate Court in dismissing appeal of petitioner is unexceptionable and warrants no interference–Petition without merits is accordingly dismissed. PLJ 2004 Lahore 1531 Allottee of land claimed to be owner of both “Ahatas” where `B’ was jointly cultivating land–“B” alleged illegal benefit derived by allottee on account of lis simplicity and ignorance whereby whole land was allotted to him–Validity–PW 1, Junior Clerk Colony, D.C. Office appeared in witness-box and substantiated claim of respondents by deposing that allotment of two Ahatas was made in name of “A” through order dated 6.5.1942–He further proved that allotment order was implemented on 29.8.1944–Patwari proved copies of Jamabandis wherein respondents are recorded as owners constantly other witnesses materially supported case of respondents–Held : Courts below have rightly concluded dispute between parties by concurrently holding that `Ahata’ in possession of petitioners was allotted to `A’ predecessor of respondents who licensed if for temporary residence to petitioner–Petition dismissed. PLJ 2004 Lahore 1479
  124. Revision–Not properly documented:– Under first proviso to sub-section (1) of Section 115 CPC, an application under this sub-section is to be supported by copies of pleadings, documents and orders of subordinate court–Held : A petition not documented in accordance with requirements, cannot be regarded to have been properly filed–Held further : Only disposal of such revision petition is its dismissal being unsubstantiated. PLJ 1998 Lahore 835 Notice of encroachment and removal of structure raised on public street–Suit challenging notice decreed by trial Court–Set aside in appeal–Challenge to–Framing of correct issues–Primary duty of Court–Concept of–Primarily it is duty of Court to frame correct issues reflecting controversy raised in pleadings–This was not done and result is that real controversy between parties has not been decided by any of Courts below–Civil Revision allowed, judgments and decrees of both Courts below set aside and case remanded to trial Court. PLJ 2002 Lahore 880
  125. Right to file cross objections:- Acquisition of land for “Construction of Flood Carrier Drain”–Awarding compensation thereof—Objection petition filed by acquiring Deptt.–Counter objection about maintainability of objection petition–Rejection of–Revision against–Respondent objector for whose benefit land was acquired and who have to pay compensation from Government’s fund, have been brought at par with those, whose lands are acquired, to make a reference u/S. 18 of Act, 1894 and to file an appeal with a view to give them a chance to adduce evidence for purposes of determining amount of compensation–It is against all cannons of principles and equity that provincial Govt. may have a right to file cross objection but federal govt. and its departments are not given such right–No substance in present petition, hence, dismissed. PLJ 1999 Peshawar 146
  126. Sale deed: – Petitioner filed an application for her impleadment as respondent on the ground that she became a co-sharer in the suit property vide unregistered agreement deed at appeal stage before Additional District Judge which was rejected–Review petition also dismissed–Revision against–Held: Deed in question is an un-registered and has no legal sanctity–Respondents who claimed to have sold disputed land were served at the trial court but not turned up and were proceeded exparte who should have come to court for setting aside said exparte decree and not petitioner for her impleadment who had no legal status as yet—Deed in question was written in 1991, but the petitioner made its basis in 1995–Delay proved fatal–Revision dismissed. PLJ 1998 Peshawar 21 One of plaintiffs/respondents entered appearance–It was stated by him that respondents have alienated land in excess of their entitlement to extent of 5½ marlas According to admitted position, total share of respondents/plaintiffs was 29 kanals 5½ marlas–Needless to state that plaintiffs is to succeed on strength of his own case and not weakness of otherside–They could not lay claim over and above their own entitlement–Held: Suit of respondents/plaintiffs will stand decreed to extent of 5½ marlas -only-Revision disposed of with above modification. PLJ 2003 Lahore 1178 Initially suit was filed through general attorney–But neither he appeared in Court, nor his power of attorney was brought on record–Any how another attorney appointed later on, was produced and examined in support of contentions of respondent–Stand of Respondent/plaintiff was that she never appeared before sub-Registrar at the time of execution of impugned sale deed, but she never appeared herself before trial Court–Petitioner has examined most important witness (Sub-Registrar) who categorically stated that he had attested sale deed and that a lady had appeared who was identified by Lambardar–His statement coupled with statements of other witnesses clearly prove that transaction in question had taken place and sale deed had been executed by respondent in favour of petitioner–Suit having been filed by respondent in year 1986, hence, it was incumbent upon her to bring on record documentary evidence to prove her possession over suit land at the time of filing suit, but she brought on record copy of Khasra girdawari pertaining to year 1983-84–Factum of possession of petitioner over suit land stands, proved even from evidence produced by respondent–Suit for declaration by respondent was not maintainable–Findings of trial Court are based on correct appreciation of evidence and appellate Court was not justified in reversing said findings–Petition accepted. PLJ 2000 Lahore 329 Sale on behalf of minors in favour of defendants without permission of Court–Defendants plea that sale had taken place with permission of Guardian Judge was not borne’ out from record–Property in question being located in Municipal limits was in favour of defendants despite fact that plaintiffs (vendors) were minors at that time and sale was being conducted without permission of Guardian Judge–Sale on behalf of plaintiffs in favour of defendants was therefore, void. PLJ 2003 Lahore 707 After proper appreciation of evidence of oral as well as documentary evidence that sale deed and mutation on basis of same goes unchallenged—It is well settled law where a land conveyed is described by boundaries as well as by area same will be treated to have been conveyed. PLJ 2000 Lahore 157 No confidence inspiring evidence was produced by plaintiffs in support of sale-deeds in question—Plaintiffs who were alleged vendees failed to appear in witness box in support of alleged sale-deeds—Courts below while decreeing plaintiff’s suit had mis-read evidence, therefore, impugned, and decrees do fall within mischief of S.115 C.P.C.—Judgments and decrees of Courts below decreeing suit were set aside in circumstances. PLD 1976 SC 767 2002 Lawvision 117 = PLJ 2002 Lahore 1204
  127. Satisfaction of decree:– Such questions were to be decided by Executing Court–Questions relating to title and possession were also required to be decided by Executing Court–Separate suit has been expressly barred–Courts below had acted without lawful authority and without jurisdiction while refusing to decide objection application only on the ground that possession had been delivered and decree had been satisfied–Case was remanded and would be deemed to be pending before Executing Court with direction to decide objection application in accordance with law. PLJ 2002 Lahore 1536
  128. Scope and import of S. 12(2) of C.P.C:– Decree order or decision or a proceeding can be challenged on the ground of absence of jurisdiction, fraud and misrepresentation only by filing application before the Court who had passed final order–Courts below, thus, had rightly maintained that they were not in a position to go into such question, in as much as, same has to be decided by Court which passed the final decree–Conciliation Court having passed decree in question, petitioner was advised to file application in terms of S. 12(2) C.P.C. before that Court. PLJ 2002 Lahore 898
  129. Scope:- Where decision of appellate Court is based on no evidence or in admissible evidence or is perversed resulting in grave injustice–It will amount of material irregularity and to revisional Court has ample jurisdiction to disturb such findings of fact. PLJ 2004 Lahore 719 Respondent (Advocate) appearing in person stated that he had been continuously beseeching petitioner/Municipal Corporation and its responsible officers to complete construction of , and to perform its statutory functions, so that no damage is caused to respondent but officials of petitioner/Municipal Corporation acted with culpable negligence and dereliction of duty which resulted in loss of Rs. 25,000/- caused to him–He submitted that statement of one PW and his own statement were unrebutted on record and were sufficient to warrant a decree which was accordingly passed ex paste by trial Court–After hearing learned counsel for parties and perusing record, no exception can be taken to findings of both learned lower Courts wherein it has been held that ex paste proceedings taken against petitioner were in accordance with law–Both learned lower Courts also took note of conduct of officials of petitioner who showed scant regard for obligation placed upon them in performance of their municipal functions–Quantum of damages in such cases cannot always be determined with any mathematical accuracy–In such cases, it is advantageous to follow rule of Thumb–Statements of one PW Respondent and (Advocate) were found sufficient by learned lower Courts to concurrently pass decree–Civil revision being devoid of merit dismissed in limine. PLJ 2003 Lahore 1677 Where finding on question of fact arrived at by First Appellate Court was based on no evidence, or was result of conjecture or fallacious appraisal of evidence, same would not be immune from scrutiny by High Court in exercise of its power under S. 115 C.P.C. PLJ 2000 Karachi 102 Where decision of appellate Court is based on no evidence or in admissible evidence or is perversed resulting in grave injustice–It will amount of material irregularity and to revisional Court has ample jurisdiction to disturb such findings of fact. PLJ 2004 Lahore 719 Jurisdiction under S.115, C.P.C. was discretionary and the Court Would not interfere under S.115, C.P.C. to correct every irregularity in the exercise of jurisdiction, but only where grave injustice or hardship would result on account of non interference—Section 115, C.P.C. would apply only to cases involving the illegal assumption, non-exercise or the irregular exercise of jurisdiction and could not be invoiced against conclusion of law or fact which bad not in any way affected the jurisdiction of the Court, no matter, howsoever, erroneous, wrong or perverse the decision might be either on a question of fact or law, unless, of course, the decision involved a matter of jurisdiction—If the Court had jurisdiction, it had jurisdiction to decide one way or the other and erroneous conclusion of law or fact could be corrected accordingly—Court would be hesitant to interfere in revision if the order was just and proper though some irregularities might have been committed in its recording—Court would also not Interfere where substantial justice had been done between the parties and where the petitioner had taken shelter behind technicalities or where the discretion had been exercised properly. 2001 CLC 1899 Order to be attacked in revision on grounds of breach of some provisions of law or by commission of some error of procedure affecting ultimate decision of case. PLJ 1987 SC (AJ&K) 52. Plaintiffs suit relating to land in question, was decreed by two Courts below–Defendants plea in revision that finding returned against defendant were contrary to evidence on file, was without substance–Evidence had been properly evaluated and appreciated by Courts below and no case of misreading or non-reading of evidence had been made out–No jurisdictional defect or illegality in appraisal of evidence had been either pointed out or was discernible on fact of record–Scope of revisional jurisdiction is limited to cases where Courts below had exceeded jurisdiction or had declined to exercise jurisdiction or had acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law–None of such defects were either pointed out in proceedings or apparent on record, therefore, interference in revisional jurisdiction was not warranted. PLJ 2003 Peshawar 226 Section 115 of Civil Procedure Code applies to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction–It cannot be invoked against conclusions of law or fact, which do not, in any way, effect Jurisdiction of High Court, no matter however, erroneous, wrong or perverse, decision might be either on a question of fact or law, unless decision involves a matter of jurisdiction–As erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed–Neither any such aspect has been put forth or highlighted, nor is seemingly available, so as to attract or entail provisions of Section 115 of Civil Procedure Code, which thus, can, neither, come into play nor press into service–Judgments and decrees, now sought to be impeached and set at naught are accordingly unexceptionable as same neither appear to suffer from any infirmity or any irregularity what to speak of material irregularity, nor perversity or arbitrariness. PLJ 2001 Lahore 627 Revisional Jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of law or fact not involving question of jurisdiction. PLJ 2003 Lahore 955 Second appeal, against order of District Judge returning memorandum of appeal, held, was not competent-Such an order could not be appealed from under 0. XLIII, r. 1, C.P.C-Revision was, however, competent. 1986 C L C 126 Applicant assailed judgment and decree of Trial Court by way of appeal before learned District Judge which was dismissed–Being aggrieved by concurrent findings of both Courts below, Applicant preferred revision application u/s 115 C.P.C.–Rights of parties cannot be defeated merely upon technicalities–Revisional jurisdiction can be invoked only when impugned order passed by Court is without jurisdiction or Court failed to exercise jurisdiction vested in it or acted illegally or with material irregularity in exercise of its jurisdiction–There are concurrent findings of two courts below which cannot be ordinarily disturbed in revisional jurisdiction until and unless it is proved that he order is illegal, suffers from material illegality or in excess/without jurisdiction–Impugned judgments and decrees do not suffer from any illegality or material irregularity, consequently, revision application stands dismissed with no order as to costs. PLJ 2001 Karachi 24 It is a settled principle of law that findings recorded by Court of competent jurisdiction cannot be interfered with by High Court, in exercise of its revisional jurisdiction unless such findings suffer from jurisdictional defect, illegality or material irregularity. PLJ 2002 Lahore 425 + PLJ 2002 Lahore 780 Revisional jurisdiction primarily is discretionary in nature and has a very limited scope, particularly when concurrent findings have been recorded by courts below. Revisional jurisdiction can be invoked in case which involves illegal assumption, non-exercise or illegal exercise of jurisdiction by courts below. Evidence has been properly appreciated by courts below and neither it is a case of misreading of evidence nor findings are perverse nor injustice has been done to applicant. PLJ 1995 Kar. 368 = PLD 1995 Kar. 261. Normally High Court does not interfere with concurrent findings of Courts below except when finding recorded is based on no evidence or on inadmissible evidence or on misreading of evidence or is palpably erroneous or perverse. Petition dismissed. PLJ 1992 Kar. 110. Revisional jurisdiction would be available against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusion of fact or law not involving question of jurisdiction–No breach of any provision of law or of procedure by Appellate Court was pointed out so as to justify interference in revisional jurisdiction–Conclusions arrived at by Appellate Court being based on sound and plausible reasons, no interference was warranted in revisional jurisdiction. PLJ 2003 Lahore 90 Section 115 C.P.C. applies only to cases involving illegal assumption; non-exercise or irregular exercise of jurisdiction by lower courts. Provision of Section 115 cannot be invoked against conclusions of law or fact, which does not in any way affect jurisdiction of court, no matter, however, erroneous or wrong, decision, might be, either on question of fact or law. Unless decision involves matter of jurisdiction. If court has jurisdiction to decide, it can decide one way or other. Jurisdiction vested in High Court under Section 115 C.P.C. is discretionary in nature, and. therefore. High Court will not interfere under this Section to correct every irregularity in exercise of its jurisdiction except where grave injustice or hardship would result on account of its non-interference. Both. Trial Court as well as lower appellate court, have discussed evidence thoroughly in their Judgments and have given valid reasons for their conclusions. Impugned judgment/decree of lower appellate Court is neither arbitrary/perverse nor is there any mis-reading/non-reading of evidence produced by petitioners/ plaintiffs. PLJ 1998 Pesh. 179= 1998 MLD 1753. Section 115 C.P.C. applies only to cases involving illegal assumption; non-exercise or irregular exercise of jurisdiction by lower courts. Provision of Section 115 cannot be invoked against conclusions of law or fact, which does not in any way affect jurisdiction of court, no matter, however, erroneous or wrong, decision, might be, either on question of fact or law. Unless decision involves matter of jurisdiction. If court has jurisdiction to decide, it can decide one way or other. Jurisdiction vested in High Court under Section 115 C.P.C. is discretionary in nature, and. therefore. High Court will not interfere under this Section to correct every irregularity in exercise of its jurisdiction except where grave injustice or hardship would result on account of its non-interference. Both. Trial Court as well as lower appellate court, have discussed evidence thoroughly in their Judgement and have given valid reasons for their conclusions. Impugned judgment/decree of lower appellate Court is neither arbitrary/perverse nor is there any mis-reading/non-reading of evidence produced by petitioners/ plaintiffs. PLJ 1998 Pesh. 179= 1998 MLD 1753.
  130. Section 115 CPC does not confer any substantive right on petitioner: – Section 115 CPC applies only to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction. If a court has jurisdiction. – Then it has jurisdiction to decide one-way or other. Erroneous conclusion of law or fact can only be corrected in appeal but revision will not be competent on such ground. Lower Appellate Court had jurisdiction to decide appeal and it has committed no illegality or material irregularity in ordering return of plaint for presentation before proper forum. PLJ 1996 Pesh. 60 = PLD 1996 Pesh. 51.
  131. Service of Defendant: – Nothing on record would indicate that petitioners were served in accordance with requirements of law or that they knew about the proceedings culminating in impugned decree–Even if material on record indicated that petitioners were served or they knew about proceedings, controversy agitated by them throughout being one of fact could not have been resolved without recording evidence–Allegations made by petitioners in their application under S. 12(2) C.P.C. could not have been resolved summarily without recording evidence–Court having failed to exercise jurisdiction vested in it, case was remanded for decision afresh in accordance with law. PLJ 2003 Peshawar 302
  132. Sole point is determination of price of suit land:– Trial Court based his judgment on one year average price while Appellate Court has based her judgment and decree on registered sale-deed–Admittedly, presumption of truth is attached to payment made through registered sale-deed because it is a public document and whenever in such like cases there are two different criteria of prices i.e. one year average and registered deed, it is pertinent to follow registered deed–Appellate Court has correctly upheld that where value of a right, interest or title is stated in a document, Court will not go behind that value and shall see whether consideration for a deed is stated in terms of money and question of liability to registered deed must be determined with reference to amount so entered and not real value of property–Amount has been entered in registered sale-deed qua suit area which is correct price and has been properly upheld by Appellate Court. PLJ 2001 Peshawar 58
  133. Special costs:- Plaintiff in order to deprive defendants of their lawful inheritance dragged them in litigation for more than a decade keeping them deprived of the enjoyment of their share of property–Litigation against defendants, being frivolous, plaintiffs were burdened with special costs of Rs. 1 lac to be paid to defendants. PLJ 2002 Lahore 1362 Trial Court while dismissing plaintiffs suit had not awarded special costs–Appellate Court while dismissing appeal could not award cost under S. 35-A C.P.C. on account of bar contained in O. XLI, R. 33 C.P.C. PLJ 2003 Peshawar 264
  134. Spot inspection: – Conclusion drawn by Appellate Court Judge on visiting spot against interest of petitioners was not warranted by law in as much as no spot inspection notes were prepared and placed on record–No statement of any person was recorded during course of inspection, particularly when Court exhibited its influence through the statement of specific witness–Aggrieved party in such situation could not avail benefit of cross-examination, nor any record was available for scrutiny by higher forums–Parties, however, had not submitted any application for spot Inspection–Appellate Court had thus, fell in error in appreciating evidence of parties in its true perspective while law on the subject under O.XVII, R. 18 C.P.C. was also misconceived by Appellate Court–Judgment and decree of Appellate Court was set aside and petitioner’s suit was decreed. PLJ 2001 Peshawar 20
  135. Suit for damages for malicious prosecution— nomination of accused/respondent in FIR, their arrest or imminent threat; grant of bail by Court, submission of challans by police and acquittal of accused for aforesaid reasons are established on record–Therefore, subjective state of mind of petitioner could only be judged if he had opted to stand test of cross-examination which he avoided without any explainable reason–After previous enmity between parties had been admitted, it was for defendant/petitioner to establish “reasonable and probable cause” to prosecute–First appellate Court considered issue involved in perspective of evidence–No case for interference made out–Petition dismissed. PLJ 2000 Lahore 325
  136. Suit for Partition–Dismissal of–Appeal against–Remand of case with direction to issue preliminary decree in favour of respondent after determining of separate shares of parties–Issue of preliminary decree and appointment of local commissioner to effect partition by visiting property and thereafter final decree on basis of reporting commissioner–Challenge to–Impugned order and report of commission revealed that trial court determined shares of respective parties as directed by appellate court–Even if trial court failed to mention word “preliminary decree” in its order dated 10.7.1988 is merely an irregularity which could be cured–Petitioner failed to agitate preliminary decree before any higher forum, therefore appeal as well as revision petition are not maintainable as High Court while exercising jurisdiction u/S. 115 CPC has very limited jurisdiction to disturb concurrent findings of fact by lower courts unless and until both courts below misread or non-read the record–Petitioner failed to point out any piece of evidence, which was misread or non-read–Petition dismissed. PLJ 1998 Lahore 1536
  137. Suit for permanent injunction:- Objection to jurisdiction of Civil Court and prayer for rejection of plaint on that ground was rejected–Legality–Facts and circumstances of case and reliefs claimed in suit would indicate that trial Court was quite justified to hold that Civil Court was possessed of jurisdiction to entertain suit–Environmental Tribunals have although been constituted to deal with matters of environmental pollution etc. yet in view of reliefs claimed in plaint including recovery of damages etc. Civil Court was possessed of jurisdiction and trial Court justifiably rejected defendant’s application for rejection of plaint–Impugned order being unexceptional hardly requires interference in revisional jurisdiction. PLJ 2003 Peshawar 240 Application for grant of Temporary Injunction allowed by trial Court–On appeal reversed by Additional District Judge–Assailed in revision before High Court on grounds that discretion exercised by Civil Court illegally interfered with by ADJ–Petitioner in possession and that even till partition he cannot be ejected from land being co-sharer and that Jamabandi in his name–Repelled=-Held: It is doubtful whether such suit was competent against co-shares–The trial Court wrongly exercised discretion and also ignored subsequent events–Revision dismissed. PLJ 2002 Lahore 1974 Acceptance of appeal by Addl. District Judge holding that earlier litigation between parties ended by way of announcement and since earlier suit was filed on representative basis and land in dispute was “Shamilat Deh” and was meant for general use of all villagers and defendants-petitioners were restrained from making any construction over it and judgment and decree pronounced in earlier suit was not challenged in appeal, which attained finality–Challenge to–Invasion on right of other co-sharer concept of–It is well settled law that land which had been dedicated for `Rafah-e-Aama’ Ghair Mumkan chhapar for general use and benefit of all villagers, all concerned individuals had to accept same along with its characteristics, which could not be extinguished merely on ground of raising construction on it, or by its allotment or purchase–Petitioner might have some right in property being co-sharer, yet characteristics of same could not be charged, which would remain as Ghair Mumkin Chhapar–One co-sharer could not be allowed to act in matter which constituted invasion on right of other cosharer–Co-sharer in possession of portion of joint property could not change nature of property in his possession unless partition took place by metes’ and bounds–Held: Judgment and decree of Civil Judge was result of misreading of evidence and against law which has been rightly set aside by first appellant Court. PLJ 2002 Lahore 1008 Petitioners set up two heavy electric press and two electric motors for manufacturing footballs causing violent vibration shaking foundation of houses–Suit dismissed by trial Court, decreed by appellate Court holding that noise and vibration produced by football manufacturing machines interfered with civic amenities of respondents- Appeal against–Almost house of petitioner is at distance of 10 to 11 feet from house of respondent–Petitioner had installed two foot-ball pressing machines which were run by two electric motors–There is sufficient evidence on record that working of these machines created so much noise that it interfered with comfort and amenities of life in house of respondents/plaintiffs–One of defendants, appeared as DW-1–He even could not controvert that aforesaid machines created vibrations and very abnormal noise–Appellate Court was eminently correct and justified in coming to conclusion that noise and vibration created by machines installed in house of petitioners were so abnormal and intense that it constituted perennial actionable private nuisance–It caused physical and mental discomfort to occupants of house and affected structure of respondents/plaintiffs house–Held: View taken by appellate Court is just, correct and does not suffer from any jurisdictional or. legal error calling for any interference in revisional jurisdiction by High Court- Petition totally devoid of any merit is accordingly dismissed with costs. PLJ 2000 Lahore 807 Appellate Court set aside the decree but allowed plaintiff to file fresh suit on same cause of action–Challenge to–Powers under order XXIII Rule (2) CPC cannot be exercised suo moto by a Court to permit plaintiff to file a fresh suit unless plaintiff satisfies it that suit must fail by reason of same formal defect (to be disclosed) or that there are sufficient reasons for allowing plaintiff to institute a fresh suit for subject matter of suit or part of claim, court may on such terms as it thinks fit grant permission to plaintiff to withdraw from such suit or abandon such part of claim with liberty to institute fresh suit–Permission to file fresh suit, therefore, exercise of such powers by court on its own was at all not permissible–Held : Appellate court acted with material irregularity and illegality, in as much as; exercised powers not vested in it by dismissing suit and permitting respondent to be at liberty to institute a fresh suit–Impugned judgement and decree set aside with direction to appellate Court to re-write it in accordance with law. PLJ 1998 Quetta 116
  138. Suit for pre emption–Talt.-i-Ishhad was not proved by plaintiff–Plaintiff also failed to prove/mention “Zaroorat” and “avoidance of Zarar” which concepts were very much on the Statute Book and was required to be mentioned and proved–Appellate Court had rightly dismissed plaintiffs suit on account of such defect–Neither any mis-reading, non-reading or material irregularity nor any illegality was pointed out in the judgment of Appellate Court–Judgment and decree of Appellate Court dismissing plaintiff’s suit were maintained- PLJ 2002 Lahore 1541 Suit for possession through pre-emption–Dismissal on point of limitation and decision upheld in appeal–Challenge to–Punjab Pre-emption Act of 1913 has been repealed as provided under S. 34 and that Punjab Pre-emption Ordinance, 1991 has also been repealed–S. 35 of Punjab Pre-emption Act, 1991 is not applicable in any suit which was filed after 28.3.1990 and if suit was filed after 28.3.1990,, period of limitation was governed by Punjab Pre-emption Ordinance and if for sake of arguments Punjab Pre-emption Act, 1991 is presumed to be applicable in such like cases, even then, period of limitation would be 4 months from date of attestation of mutation–When date of filing of suit i.e. 22.5.1990 is established fact, therefore, there was no need to record any evidence of parties on this issue–When finding on the issue of limitation was fatal for entire case, there was not justification to proceed further and judgment passed by ADJ is upheld and revision petition dismissed. PLJ 2003 Lahore 1072
  139. Suit for recovery of damages: – Buffalo of respondent/plaintiff died due to electric short–Despite complaint qua short circuit of electricity in pole, petitioner failed to redress grievance resulting death of buffalo- Carelessness and negligence of petitioner–Suit for damages decreed by trial Court, upheld in appeal– It is settled proposition of law where person has suffered personal injuries on account of negligence of another, he is entitled to damages for personal suffering and for loss of enjoyment of life and also on actual pecuniary loss resulting to and expenses reasonably incurred by him–Petitioners are responsible for acts and omissions of their employees–Courts below stated in their findings that petitioners/defendants have failed to show that it had not been guilty of negligence in ensuring that electric current did not run through pole–For its failure to offer any valid excuse for absolving of itself of negligence respondent’s suit could not but have been decreed–Under law petitioners are responsible to properly maintain poles especially poles through which electric current is supplying to tube well—WAPDA authorities should hold inquiry to determine that who officials were responsible to this sad incident, so damage claimed by respondents should be recovered from pocket of such officials and not from department which is public property–All those officers/officials found responsible for this mischief be proceed under E & D Rules and also get criminal cases registered against them–Revision petition disposed with above terms. PLJ 2000 Lahore 734
  140. Suit for specific performance of agreement to sell: – Whether an order in appeal cannot be interfered with in revisional jurisdiction in which finding of fact was recorded. If lower court misreads evidence on record and fails to take notice of a vital fact appearing therein and comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by High Court. Relief of specific performance was discretionary in nature, which could not be claimed as a matter of right. Agreement of sale prior in time was proved in favour of petitioner who had also got sale deed and thus property stood finally conveyed to him. Appellate court could not ignore reasoning recorded by trial court, without extending any plausible ground. Petition allowed. PLJ 1998 Lah. 364 = 1998 MLD 536. Whether an order in appeal cannot be interfered with in revisional jurisdiction in which finding of fact was recorded. If lower court misreads evidence on record and fails to take notice of a vital fact appearing therein and comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by High Court. Relief of specific performance was discretionary in nature, which could not be claimed as a matter of right. Agreement of sale prior in time was proved in favour of petitioner who had also got sale deed and thus property stood finally conveyed to him. Appellate court could not ignore reasoning recorded by trial court, without extending any plausible ground. Petition allowed. PLJ 1998 Lah. 364 = 1998 MLD 536. Predecessor in interest of petitioners was entitled to receive Rs. 10,545/- on or before 4-12-1969 which was not paid to him–This amount was deposited on 21-7-1993 after decree was passed by High Court, by respondents in State Bank–Since, payment was not made with stipulated period, petitioners were entitled to be recompensed for loss they suffered on account of diminution in purchasing power or exchange value of Rupee–Criterion to determine equal amount of Rs. 10,545/- on 21-7-1993 is to find out as to What amount of U.S. Dollars could be purchased on 4-12-1969 for amount of Rs. 10,545/- and then to reconvert same in Pak rupee at rate of exchange prevalent on 21-7-1993–Executing Court was directed to determine amount of consideration for re-conveyancing suit property to respondents in the light of said criterion–Order accordingly. PLJ 1998 Lahore 297 Petitioner appears to have bent upon to deprive of heirs of deceased from inheriting property in question- Relinquishment deeds in question are proved to be shamed, hence void and even without consideration–Said-deeds are result of fraud and misrepresentation–Findings on question of fact or law, howsoever erroneous ame may be, recorded by a Court of competent jurisdiction, cannot be interfered with by High Court in exercise of revisional jurisdiction, unless such findings suffered from jurisdictional defect, illegality or material regularity–Petitioner failed to point out any piece of evidence which as misread or material irregularity committed by lower Court. PLJ 2000 Lahore 695
  141. Suit on Promissory Note: – Defendant was served through substituted service in a newspaper which is weak type of service and it cannot be equated with personal service–Words when summons is served” appearing in Art. 159 of Limitation Act 1908, would mean personal service–Perusal of summons published in newspaper shows that same does not substantially conform to summons in Form 4 of Appendix B’ C.P.C.–Provisions of R. 2 of O. XXXVII, of C.P.C. being mandatory in nature, respondent/defendants could not be punished–Where law prescribes a thing to be done in a particular manner, doing of that act in any other manner amounts to illegality–Trial Court had rightly condoned three days delay and allowed defendant to appear and defend suit. PLJ 2003 Peshawar 221 Suit for recovery of money in summary Jurisdiction based on promissory note attested by two witnesses—Trial Court found the document not a promissory note, but a bond and sent the case to District Judge for entrusting the same to Civil Court to be tried as ordinary suit—Validity—Such document fulfilled all the conditions laid down in S.4 of Negotiable Instruments Act, 1881, as same was in writing and signed by its maker; it was not a Bank note or currency note: it contained an unconditional promise by defendant to pay certain amount on demand by plaintiff and there was no prohibition on transfer of instrument—Unless it was otherwise expressed by specific words that transfer of the instrument was prohibited it would be deemed that same was payable to order of the persons to whom the instrument was payable—Notwithstanding its attestation by witnesses, such document fell out of ambit of S.2(5(b) of Stamp Act, 1899, which would be applicable to instruments not payable to order—Attestation of promissory note by two witnesses would not render same not as negotiable, because Negotiable Instruments Act, 1881 did not prohibit attestation of promissory note or any other instrument defined therein by the witnesses—High Court set aside impugned order and granted to defendant leave to defend on furnishing security in the suit amount to satisfaction of Trial Court Raghunath Balakrishna Deshpande v. Biharilal Krishnaprasad Dave AIR 1972 Mis. 159 ref. CLD 257 Leave to appear and defend suit was not granted to defendant on the ground that defendant had not filed application seeking such leave–Defendant had filed such application within prescribed period however the same was drafted in the form of a written statement–Courts have power to treat an application as written statement and written statement as application–Wrong drafting or wrong quotation of law by party omits counsel does not debar Court from taking into consideration gist of assertions made therein–Application filed by petitioner was treated as application for leave to appear and defend suit. PLJ 2004 Lahore 1042 For a court both options are open either to call upon defendant to file bank guarantee or a security to its satisfaction, whereas trial court has exercised discretion to call upon petitioner to furnish Bank Guarantee–It is admitted fact that two cheques for an amount of Rs. 3,12,000/- were issued by petitioner but same were dishonoured–As such repayment of aforesaid. Amount is yet to be established at trial–In such a situation when receipt look to be prima facie suspicious, trial Judge had exercised his discretion judiciously–Impugned order does not suffer from any legal infirmity–Petition dismissed. PLJ 1998 Lahore 489 Whether there is any justification to interfere with concurrent findings of fact– Issue No.5 is an issue of fact–Courts below have concurrently found this issue against petitioners–No misreading/non-reading of evidence by courts below, is pointed out–Held: There being no illegality, material irregularity or jurisdictional defect in impugned orders, there is no justification to interfere in exercise of revisional power of High Court with well-reasoned orders of courts below–petition dismissed. PLJ 1991 Lahore 110
  142. Suo Motto allowing Plaintiff to file Fresh Suit:- Appellate Court set aside the decree but allowed plaintiff to file fresh suit on same cause of action–Challenge to–Powers under order XXIII Rule (2) CPC cannot be exercised suo moto by a Court to permit plaintiff to file a fresh suit unless plaintiff satisfies it that suit must fail by reason of same formal defect (to be disclosed) or that there are sufficient reasons for allowing plaintiff to institute a fresh suit for subject matter of suit or part of claim, court may on such terms as it thinks fit grant permission to plaintiff to withdraw from such suit or abandon such part of claim with liberty to institute fresh suit–Permission to file fresh suit, therefore, exercise of such powers by court on its own was at all not permissible–Held : Appellate court acted with material irregularity and illegality, in as much as; exercised powers not vested in it by dismissing suit and permitting respondent to be at liberty to institute a fresh suit–Impugned judgement and decree set aside with direction to appellate Court to re-write it in accordance with law. PLJ 1998 Quetta 116
  143. Temporary injunction: – Trial Court rejected petitioner’s application against respondents seeking injunction restraining respondents from encashing bank guarantees against mobilization advance and performance of contract. Petitioner does not appear to have prima facie case in its favour in as much as it had failed to execute contract between parties by constructing works within stipulated period of one year. Nothing on record would indicate even prima facie, that respondents were responsible for non-completion of work within time. No temporary injunction could, thus be granted restraining respondents from encashing un- conditional guarantee furnished by banks in respect of mobilization advance. Such proposition, however, would not apply with equal force to performance guarantee, furnished by contractors. In such cases although as a general rule, not temporary injunction should be granted yet there were certain exceptions to the rule like fraud or un-equitable conduct of opposite party. There were, thus, no special features in petitioner’s favour, which would justify grant of temporary injunction restraining respondents from encashing bank guarantees. PLJ 2000 Lah. 1096. Temporary injunction in favour of plaintiff by Appellate Court, assailed–Order of Trial Court refusing to grant temporary injunction was illegal, in as much as, all three ingredients, for grant of temporary injunction i.e. prima facie case, irreparable loss and balance of convenience co-existed in favour of plaintiffs–Order of Trial Court had been rightly set aside by Appellate Court by accepting plaintiffs appeal–No irregularity or illegality had been committed by Court of appeal while granting temporary injunction in favour of plaintiff, to warrant interference in impugned order. PLJ 2003 Lahore 1187 Respondent’s failure to prove parameter set out by law for grant of temporary injunction–Effect–Relief claimed in application for temporary injunction was almost the same as prayed in suit–First Appellate Court while embarking upon case had in fact, while deciding application for temporary injunction more or less decreed the suit–Controversy raised in application was germane to controversies involved in main suit–Respondent in order to succeed in his application for interim relief failed to prove that either he had got prima facie case or in case of refusal be would suffer irreparable loss or balance of convenience was in his favour–Findings of First Appellate Court granting temporary injunction being not sustainable in law were set aside while those of trial Court refusing to grant the same were restored. PLJ 2001 Lahore 944 Property in question being joint, defendants have in right to raise construction thereon to change character thereof–Plaintiff being admittedly co-sharer had made out a prima facie arguable case in his favour–If defendants were not restrained from raising construction thereon, petitioner/plaintiff was bound to suffer irreparable loss, thus, balance of convenience was also in his favour–Defendants who were already in possession would not face any inconvenience if they were restrained from raising construction–Injunction prayed for should have been granted in favour of plaintiff–Orders of Courts below refusing injunction was set aside and plaintiff was granted injunction pending decision of suit. PLJ 2004 Lahore 943 Jurisdiction under S. 115 is limited to correcting errors made by subordinate Courts in exercise of their jurisdiction hut not which are made in their discretion—Refusal of temporary injunction, not interfered. P L J 1980 Karachi 166
  144. Trial without jurisdiction: – Despite the fact that Trial Court had reached the conclusion that Court had no jurisdiction, plaint was not returned to plaintiff rather suit was decreed and judgment was upheld by Lower Appellate Court–Validity–Where at any stage of the suit, Trial Court had arrived at a decision that such should have been instituted in any other Court having jurisdiction, mandatory procedure proceeded under O. VII, R. 10, C.P.C. was attracted–Duty of Trial Court, under the circumstances, was to return plaint for presentation to proper Court–Course prescribed by law had neither been followed by Trial Court nor by Appellate Court–It’s a material irregularity–Judgement and decree passed by lower Appellate Court was set aside and plaint was returned for presentation before the Court of Competent jurisdiction. PLJ 2001 Karachi 318 PLD 1982 Kar. 749 relied. PLD 1985 SC 41 and PLD 1996 SC 292 ref. Plaintiffs claimed that order of Appellate Court vacating ad-interim order passed by Trial Court was lacunic and had no sanctity in the eye of law–If such was the case of plaintiffs then impugned order/judgment of Appellate Court was not open to exception as on one hand order of injunction passed by trial Court was non-existent on the strength of provisions of law and on the other hand the same was made non-existent by specific order passed by Appellate Court vacating the order of injunction–No other point having been agitated revision was not maintainable. PLJ 2003 Peshawar 19
  145. Well Reasoned Decision:- Perusal of impugned order and judgment reveal that they were entirely reasonable and evidence was properly examined, assessed and findings were based on evidence–Impugned finding does not suffer from any jurisdictional error, irregular exercise of jurisdiction, non-exercise or illegal assumption of jurisdiction–Revision being incompetent against impugned order, was dismissed.PLJ 2002 Lahore 1605 When Courts below had acted in exercise of their jurisdiction illegally, their findings become amenable to revisional jurisdiction of High Court as jurisdiction under S. 115 was primarily meant to correct errors in orders and proceedings conducted by subordinate Courts. PLJ 2002 Lahore 814 2000 SCMR 974 ref
  146. Whether time settled was essence of contract: – Agreement does not reveal that time was intended to be or was settled as essence of contract of sale in between parties and there is nothing on record that in event of expiry of period settled no claim will even be lodged by plaintiffs/petitioners against defendant/respondent–Held: Judgment and decree passed by ADJ is not in consonance with facts and law and is not liable to be maintained–Petition allowed. PLJ 2003 Lahore 858
  147. Withdrawal of suit:- Withdrawal of suit with liberty to bring a fresh suit without notice to defendant would be open to revision u/S. 115 C.P.C. PLJ 2000 SC 340

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