PLJ 2001 SC 139

[Appellate Jurisdiction]

Present: MUHAMMAD BASHIR JEHANGEU; DEEDARHUSSAIN SHAH

and javed iqbal, JJ. Mqjor RASHID EEC-Appellant

versus

REHMAT ULLAH KHAN and 4 others-Respondents Civil Appeal No. 169 of 1995, decided on 19.10.2000.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 22.9.1993 passed in C.R. No. 172-D of 1982)

(i) Constitution of Pakistan, 1973-

—Art 185--Civil Procedure Code, 1908 (V of 1908), S. 115-Concurrent findings of Courts below-Reversal by High Court-Validity-Wkere concurrent findings were based on conjectural presumptions, erroneous assumptions and wrong proposition of law, same could be reversed by High Court while exercising revisional jurisdiction-Interference would be justifiable in concurrent findings when the same were based on in sufficient evidence, misreading of evidence, non-consideration of material evidence erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, as arbitrary exercise of power and where un-reasonable view on evidence had been taken due to non-reading and misreading of evidence. [P. 143] A

(ii) Specific Relief Act, 1877 (I of 1877)--

—S. 42-Constitution of Pakistan, 1973, Art. 186-Dismissal of respondents suit against cancellation of allotment in their favour by two Courts below- -High Court on consideration of material on record decreed respondents, suit--Validity--Plot in question, was cancelled from the name of appellant and was allotted in favour of respondent-Appellant had not invoked
jurisdiction of any civil Court to get his title established or for redressal of bis grievances but kept on waiting for the result of litigation by respondents, thereby ignoring the fact that he could not derive any benefit, in as much as, he was having no legal status after cancellation of plot in question, from his name--Non-delivering of possession to respondent after allotment, was of no consequence, in as much as, physical handing over of plot in question, was subject to completion of certain formalities which could only be done by concerned functionaries
of District Allotment Committee-Lapse of the Department in not handing over possession of plot in question, after completion of
formalities could not be equated to that of wilful default-High Court ,
thus, had rightly decreed respondents suit and same could not be
interfered with in exercise of appellant jurisdiction. [P. 144] B

PLD 1983 SC 53; 1981 SCMR 1233; PLD 198? SC 139; PLD 1985 SC 41; PLD 1989 SC 568; 1989 SCMR 34; PLD 1994 SC 162; 1994 SCMR 1836; 1999 SCMR 971; 2000 SCMR 533 ref.

Mr. Shakbaz Khurshid, ASC & Mr. Tanvir Mmed, AOR (absent) for Appellant.

Ch. Muhammad Farooq, St. ASC and Ch. Akhtar Mi, AOR for Respondents Nos. 1 & 2.

Mr. Dil Muhammad Tarar, ASC for Respondents Nos. 3 to 5. Date of hearing: 19.10.2000.

judgment

Javed Iqbai, J.-This appeal by leave of the Court is directed against judgment dated 22.9.1993 passed by learned Single Bench of Lahore High Court, Lahore, whereby the revision petition preferred on behalf of the respondents has been accepted by setting aside the judgments/decrees dated 7.6.1979 and 23.1.1982 passed by learned Civil Judge, Faisalabad, and learned Additional District Judge, Faisalabad, respectively, whereby suit for declaration and permanent injunction filed by the respondents has been decreed.

2. Leave granting order dated 3.13.1995 is reproduced herein below to appreciate the legal and factual aspect of the controversy to the effect that "the first and the second respondents were allotted Plot No. 621/A but the allotment was cancelled by the District Housing Officer's order dated 25.11.1967. The said respondents brought this suit to have it declared that the cancellation order was void and illegal. Then <v^rd was that they had not violated the terms and conditions of allotment; that they were to pay instalments and raise construction on the plot only after the delivery of possession and as they were never placed in possession of the plot, there was no question of paying instalments or raising construction. The learned trial Judge dismissed the suit and the said respondents' appeal was dismissed by the appellate Court's judgment dated 23.1.1982. On their revision, a learned Judge of the High Court held that the Courts below had "acted with material irregularity in reaching the conclusion that the petitioners had failed to observe the terms and conditions of the contract or that the plot stood lawfully allotted in the name of Respondent No. 4 (Major Rashid Beg petitioner herein). He, therefore, accepted the revision petition and set aside the judgment and the decree of the Courts below and decreed the suit. We have heard learned counsel for the petitioner and learned counsel for the plaintiffs. Respondents Nos. 1 and 2 herein. We have been referred to the finding of the learned trial Judge and the finding of the learned Additional. District Judge, Faisalabad on the question of delivery of possession. It is pointed out that the finding was that it was the duty of the said respondents - to, and here I quote from the judgment of the learned Additional District Judge "have taken steps for de*! *°ry of possession after the execution of agreement Exh.. P-3", and that "there is nothing on the record to show that the appellants ever before the issuance of show-cause notice applied to Respondent No. 1 for delivery of possession". The contention is that in view of this finding the learned Judge in the High Court was wrong to proceed on the footing that possession of the plot was not delivered to the Respondents Nos. 1 and 2. Leave to appeal is granted to consider this contention."

3. It is mainly contended by Mr. Shahbaz Khurshid, learned ASC that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that in view of the well settled law the concurrent findings of fact could not be reversed in view of dictum laid down by this Court in PLD 1983 SC 53 and 1981 SCMR 1233. It is also urged with vehemence that the plot in question was never cancelled from the name of appellant and accordingly there was no lawful justification for its allotment in favour of respondents. It is further argued that a simple note in the demand and collection register regarding cancellation of allotment by no stretch of imagination can be equated with that of cogent documentary evidence which has been relied upon by the learned High Court without any rhyme and reason which resulted in grave prejudice. It is next contended that the impugned judgment being laconic is liable to be set aside and the concurrent findings as derived by the learned trial and Appellate Court may be kept intact.

4. Ch. Muhammad Farooq, learned Sr. ASC appeared on behalf of Respondents Nos. 1 and 2 and vehemently controverted the view point as convassed on behalf of the appellant by arguing that impugned judgment being free from any illegality or infirmity hardly calls for any interference as no lawful justification is available for it. It is contended that the scope of Section 115 CPC is not limited and concurrent findings if based on misreading or non-reading of evidence can be reversed. Reliance has been
placed on the following authorities to substantiate the said contentions :--

Karamat Hussian v. Muhammad Toman (PLD 1987 SC 139)

Illahi Bakhsh v. Noor Muhammad (PLD 1985 SC 41)

Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568)

Sheikh Muhammad v. Mst. Hashmat Sultana (1989 SCMR 34)

Saheb Khan v. Muhammad Pannah (PLD 1994 SC 162)

Muhammad Bakhsh v. Province of Punjab (1994 SCMR 1836)

Zakirullah Khan v. Faizullah Khan (1999 SCMR 971)

Muhammad Siddique v. Muhammad Akram (2000 SCMR 533)

5. It is, however, conceded frankly by Ch. Muhammad Farooq, learned Sr. ASC that the allotment order was made in favour of appellant but it has got no value as no agreement could be executed by the appellant which was a mandatory pre-requisite for such an allotment. It is pointed out that the respondents had executed the agreement after completion of all the mandatory formalities. It is argued firmly that physical possession was never handed over to the respondents by the department concerned and it was beyond the competency of Respondents to take over the possession at their own and for the lapse or omission of the department the respondents cannot be held responsible.

6. Mr. Dil Muhammad Tarar, learned ASC appeared on behalf of learned Advocate General and supported the impugned judgment by conceding that the plot in question was allotted to respondents on 13.1.1964 and agreement was signed on 2.10.1964 but possession was not handed over on "Form V".

7. We have carefully examined the respective contentions as agitated on behalf of the parties. We have thrashed out the entire record with the eminent assistance of learned counsels for the parties. The judgments and decrees passed by learned trial and Appellate Courts have been perused carefully. We have also gone througn the impugned judgment. We are not persuaded to agree with Ch. Shahbaz Khurshid, learned ASC on behalf of the appellants that concurrent findings in any case cannot be reversed by the High Court while exercising revisional jurisdiction under Section 115 CPC for the reason that the scope of Section 115 CPC is not as narrow and limited as portraited by Ch. Shahbaz Khurshid, learned ASC. We are of the considered opinion that where the concurrent findings are based on conjectural presumptions, erroneous assumptions and wrong proposition of law that can be reversed justifiable by High Court while exercising revisional jurisdiction as conferred upon it under Section 115 CPC and interference may be made in concurrent findings when the same are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken due to non-reading and misreading of evidence.

8. A careful scrutiny of the record of the case and evidence would -- reveal that on 26.10.1963 the plot in question was cancelled from the name of appellant and an entry to th* effect made in the Demand and Collection Register against which an appeal was also filed by the appellant which was not pursued and thereafter no further action was taken to get the allotment revived. It is quite amazing that once again the appellant got up from his slumber when the suit of respondents was dismissed but "dismissal of suit" does not mean re-allotment of plot in favour of appellant as in any case no declaration could have been given in his favour irrespective of the fate of the ^ suit filed by the respondents. It is an admitted feature of the case that the plot in question was allotted in favour of respondents on 24.1.1964 after its cancellation on 26.10.1963. In this regard the observations as made by the learned High Court while exercising revisional jurisdiction are unexceptionable which are reproduced herein below for ready reference :--

"True, the disputed plot was allotted in the name of Major Rashid Baig, Respondent No. 4 but subsequently it was cancelled from his name on 26.10.1963. An entry to this effect was made in the Demand and Collection Register maintained by the District Housing Officer, Faisalabad. Subsequently, the plot was allotted to the petitioners but their allotment was not challenged by Respondent No. 4 even after coming to know about the allotment of the plot in the name of the petitioners. Respondent No. 4 had even filed an appeal against the cancellation of the plot on 3.2.1972 before the Deputy Commissioner and the Secretary to the Government of the Punjab but did not pursue the same in view of the litigation pending in the Civil Court. The stand taken by the department that the agreement alongwith the two copies was handed over to the petitioners; who were supposed to get it registered and return the same to the department is not acceptable. Had it been so it must have been stated in the show-cause notice. The department has accepted the execution of the agreement in favour of the petitioners and has attempted to justify the action taken by it on the basis of the conditions of the contract.

9. It is an admitted fact that the appellant had not invoked the jurisdiction of any Civil Court to get his title established or for the redressal of his grievances but kept on waiting for the result of litigation initiated by the respondents but ignored that he could not derive any benefit as he was having no legal status after the cancellation of plot in question. We are not persuaded to agree with Ch. Shahbaz Khurshid, learned ASC on behalf of the appellant that since the possession was not handed over to the respondents as such appellant is on a better footing as compared to that of respondents which aspect of the matter has been appreciated properly by the forums below for the reason that admittedly the physical possession was not handed over to the respondents and the statement of Ajmal Khan makes it abundant clear that physical possession was not handed over by the artment concerned and he stood firm to tbe test of cross-examination and nothing beneficial could be elicited in spite of various searching questions and exhaustive cross-examination. The version of official witnesses remained unshattered and being confidence inspiring cannot be brushed aside. The contention as agitated on behalf of the appellant that since no construction whatsoever was made by the respondents as such they are not entitled for the allotment seems devoid of merits for the simple reason that without having physical possession the question of construction does not arise and on this score the entitlement of the respondents cannot be challenged. Admittedly the further dues were required to be paid after having received
the physical possession which was never handed over to the respondents and, therefore, such lapse cannot be equated to that of a wilful default. All the conditions as enumerated in the agreement in this regard would figure in after the delivery of possession and thus cannot be pressed into service. As mentioned herein above physical handing over of the plot is subject to completion of certain formalities which can only be done by the concerned functionaries of the District Allotment Committee and suo motu assumption of the plot by the respondents was not possible as it was for the department concerned to hand over its proper possession.

10. In the light of foregoing discussion we are not inclined to accept this appeal which is accordingly dismissed being devoid of merits.

(A.A.) Appeal dismissed.