power in civil revision Under section 115CPC Case law on revision
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| High Court power in civil revision Under section 115CPC Case law on revision |
**سول اپیل نمبر 648 آف 2022** میں سپریم کورٹ کے فیصلے نے کئی منفرد قانونی نکات پر روشنی ڈالی:
1. **نظرثانی دائرہ اختیار کی حد:**
- عدالت نے تقویت دی کہ سی پی سی کی دفعہ 115 کے تحت، حقائق اور قانون کے ہم آہنگ نتائج میں مداخلت کرنے کا ہائی کورٹ کا اختیار بہت محدود ہے۔ ہائی کورٹ صرف نتائج پر نظر ثانی کر سکتی ہے اگر کوئی مادی بے ضابطگی، دائرہ اختیار کا غیر قانونی استعمال، یا طریقہ کار میں کوئی اہم غلطی ہو، صرف اس وجہ سے نہیں کہ وہ نتائج سے متفق نہیں ہے۔
2. **فریب سے متعلق ثبوت کا بوجھ:**
- اس بات پر زور دیا گیا کہ دھوکہ دہی کے الزامات مخصوص اور تفصیلی ہونے چاہئیں۔ دھوکہ دہی کے عمومی دعوے، قطعی تفصیلات اور ثبوت کے بغیر، میمورنڈم آف گفٹ جیسی دستاویزات کی درستگی کو چیلنج کرنے کے لیے ناکافی ہیں۔
3. **زبانی تحفہ اور دستاویزات کا ثبوت:**
- کیس نے اس بات پر زور دیا کہ جب تحفہ کی یادداشت اور معاون دستاویزات (جیسے تحفہ کو تسلیم کرنے والا خط) پیش کیا جاتا ہے اور اس پر کوئی اختلاف نہیں ہوتا ہے، تو ان کا کافی وزن ہوتا ہے۔ ہائی کورٹ کے موقف کے برعکس، ٹرائل اور اپیل کورٹس کا اس طرح کے دستاویزات پر انحصار مناسب سمجھا گیا۔
4. **نظرثانی کے جائزے کا دائرہ:**
- سپریم کورٹ نے واضح کیا کہ نظرثانی دائرہ اختیار شواہد کا ازسر نو جائزہ لینے یا حقائق پر مبنی نتائج کا از سر نو جائزہ لینے کا ایک ذریعہ نہیں ہے جب تک کہ شواہد کی غلط پڑھائی یا بنیادی غلطی نہ ہو۔ ہائی کورٹ کی مداخلت کو بلاجواز سمجھا جاتا تھا کیونکہ یہ نظر ثانی کے دائرہ اختیار کو چلانے والے اصولوں کے مطابق نہیں تھا۔
یہ نکات نظر ثانی کے دائرہ کار کے دائرہ کار، مخصوص دھوکہ دہی کے الزامات کی ضرورت، اور قانونی کارروائی میں شواہد کی مناسب جانچ کے اصولوں کی تصدیق کرتے ہیں۔
THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr.Justice Syed Mansoor Ali Shah
Mr.Justice Jamal Khan Mandokhail
Mr.Justice Athar Minallah
CIVIL APPEAL NO.648 OF 2022
AND CMA 5213 OF 2022
(Appeal against judgment and decree dated
06.05.2022 of the Lahore High Court, Lahore
passed in Civil Revision No.224476 of 2018)
Aamir Afzal and another
…
Appellants
Versus
S. Akmal (deceased) through LRs
and two others
…
Respondents
For the appellant:
Mr. Uzair Karamat Bhandari, ASC
For the respondents:
Mr.Zulfiqar Abbas Naqvi, ASC
Mr. Muhammad Ejaz Jamal, ASC
Mr. Arshad Ali Ch., AOR.
Date of hearing:
17.01.2024
JUDGMENT
Athar Minallah, J.- The appellants have assailed the judgment dated
06.05.2022 of the High Court whereby concurrent findings recorded by
two competent courts were set aside while exercising revisional
jurisdiction under section 115 of the Code of Civil Procedure Code,
1908 (‘CPC’).
2.
The dispute was regarding the residential property (‘property’)
described in the plaint filed by the respondents. The property was
purchased by Major (rtd.) Muhammad Afzal (‘predecessor-in-interest’)
on 15.10.1959. The appellants are siblings and they were born out of
the second marriage of the predecessor-in-interest. The second wife had
passed away during the life time of the predecessor-in-interest.
Respondent No.1, S. Akmal, was born out of the marriage contracted
with the first wife i.e respondent No.2, Ms. Saleha Afzal. The
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predecessor-in-interest passed away on 18.02.2005. The latter had
executed a Memorandum of oral gift (‘Memorandum’), dated
04.02.1974, and it was duly registered with the Sub-Registrar, Lahore
on 05.02.1974. It was recorded in the Memorandum that the property
was orally gifted in favour of the appellants in 1962 and the respective
shares/portions were also expressly mentioned therein. The
Memorandum was produced at the trial and it was exhibited as Exh.P-
23. The original Memorandum and its certified copies were also
produced. Pursuant to the execution of the Memorandum, the property
was transferred in the record of Model Town Cooperative Housing
Society (‘Society’) pursuant to separate applications which had been
filed by the predecessor-in-interest on 22.11.1975. The Society issued
separate letters and share certificates in favour of the appellants vide
letter dated 05.01.1976 and 04.01.1976 respectively. The appellants
were recorded as owners of the property. The predecessor-in-interest,
vide his letter, dated 29.08.1998, addressed to the Society, had
acknowledged the factum of gift in favour of the appellants. As would be
explained later, this letter was produced during the trial and a copy of
the same was kept on record after the Court had examined the original
document produced by the witness, who had entered the witness-box
on behalf of the Society. It appears from the record that the relationship
between respondent No.1/plaintiff No.1 and the predecessor-in-interest
remained strained and acrimonious. However, the predecessor-ininterest had gifted two houses in favour of respondent No.1/plaintiff
No.1 situated in Islamabad. After the predecessor-in-interest passed
away, the respondents filed a suit for partition of the property on
30.03.2005. The respondents had also made a reference in the plaint to
the property having been gifted in favour of the appellants. The suit was
contested by the appellants and specific reference was made to the
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Memorandum. Subsequently, on 25.06.2005 the respondents filed a
suit seeking declaration, injunction and cancellation of the
Memorandum. The subsequent suit was filed on 25.06.2005 and the
appeal before us has arisen there from. The trial Court, vide order
dated 21.06.2011, had framed nine issues out of the divergent
pleadings and on conclusion of the trial the suit was dismissed vide
judgment and decree dated 10.06.2017. The appeal filed by the
respondents on 03.07.1997 did not succeed and it was dismissed by the
appellate court vide judgment and decree dated 21.06.2018. The
concurrent findings of fact and law rendered by two competent courts
were challenged before the High Court, invoking its revisional
jurisdiction. The High Court allowed the petition and set aside the
concurrent findings vide the impugned judgment dated 06.05.2022.
3.
We have heard the learned counsels and with their able
assistance perused the record placed before us.
4.
The respondents had sought a declaration regarding the
Memorandum and its cancellation was also prayed for. It was pleaded
in the plaint that they were in possession of the property and that they
had been dispossessed. It was also asserted in the plaint that after the
filing of the suit for partition, the Memorandum was fraudulently
prepared so as to deprive the appellants of their hereditary rights. It
was pleaded that the Memorandum was fabricated. A plain reading of
the plaint shows that the assertion of fraud was of a general nature and
the particulars thereof had not been stated. During the trial, the initial
burden of proving the factum of fraud or fabrication could not be
discharged by the respondents. It is noted that there was no reference
in the plaint to the oral gift made in the year 1962 and, therefore, an
issue in this regard had not been framed. The initial burden to prove
that the Memorandum of gift was forged and fabricated was on the
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respondents. The respondents were also not able to establish that at
any time during or after the lifetime of the predecessor-in-interest they
had remained in possession of the Property let alone having been
dispossessed. It is not disputed that the transfer of shares by the
Society in the name of the appellants was not challenged by the
respondents. It is also not disputed that the appellants were minors
when the oral gift was made in their favour by the predecessor-ininterest in 1962. The respondents had made a reference to the property
having been gifted in favour of the appellants in the earlier suit filed for
seeking partition. They had asserted in the subsequent suit that the
factum of execution and registration of the Memorandum came to their
knowledge during the trial of the earlier suit. The trial Court, after
proper appreciation of the evidence brought on record, dismissed the
suit and the appeal was also dismissed subsequently.
5.
The High Court, while exercising its revisional jurisdiction
under section 115 of the CPC, has set aside the concurrent findings of
facts and law rendered by two competent Courts. In the opinion of the
High Court, the onus of proving the execution of the Memorandum was
on the appellants and they had failed in discharging such onus. It is
noted that rule 4 of order VI of the CPC explicitly provides that in all
cases in which the party pleading relies, inter alia, on fraud, shall state
in the pleadings particulars with dates and items if necessary. It is
settled law that the parties are required to plead all facts that may
constitute a cause of action for any relief or in defence, as the case may
be. A party which alleges a fact has to prove the same and the
ingredients of fraud have to be narrated and stated by giving particulars
thereof. It is settled law that fraud must be specifically alleged and its
particulars unequivocally stated. This Court has consistently held that
general allegations, however strong the words may be, are insufficient to
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constitute an assertion of fraud and that vague allegations in a plaint
are not enough.1 In the case before us the assertion regarding fraud
was of a general nature and no particulars had been stated in the
plaint. The concurrent findings had correctly appreciated that the
general allegation of fraud was insufficient. Moreover, the initial burden
was definitely not discharged by the respondents so that the onus could
have shifted to the appellants. This crucial aspect appears to have
escaped the attention of the High Court. The learned counsel for the
appellants has rightly pointed out that the reliance by the High Court
on the judgment rendered by this Court in Fareed’s case2 was
misplaced because it was distinguishable. The facts of the case before
us are distinguishable because, at the time of making of the oral gift in
1962, the appellants were minors. The observations of the High Court
regarding the evidentiary value of the letter dated 29.08.1998 addressed
by the predecessor-in -interest to the Society are not sustainable
because they are not in consonance with the record of the trial Court.
The letter was not disputed because it was relied upon by the
respondents themselves. The original was produced by the witness who
had entered the witness-box on behalf of the Society. It was an admitted
document and the High Court was not justified in forming an opinion
that the two competent courts could not have considered and relied
upon it. The concurrent findings were based on proper appreciation of
the evidence brought on record and the conclusions were drawn on the
touchstone of the principle of preponderance of evidence. The
concurrent findings did not suffer from any material irregularity nor
misreading or non-reading of the evidence. The High Court was,
therefore, not justified in setting aside the concurrent findings of the
1 Mst. Sahib Noor v. Haji Ahmed (1988 SCMR 1703)
Muhammad Umar v. Muqarab Khan and another (1968 SCMR 983)
Ghulam Shabbir v. Mst. Nur Begum and others (PLD 1977 SC 75)
Tom Boevey Barrett v. African Products, Ltd. (AIR 1928 PC 261)
2
Fareed and others v. Muhammad Tufail and another (2018 SCMR 139)
CA-648 of 2022.doc
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two competent courts in the circumstances while exercising revisional
jurisdiction.
6.
It is settled law that while exercising jurisdiction under Article
115 of the CPC the High Court has to first satisfy itself: (i) that the order
of the subordinate court is within its jurisdiction, (ii) that the case is
one in which the court ought to exercise jurisdiction; and that in
exercising jurisdiction that court has not acted illegally, that is, in
breach of some provisions of law, or with material irregularity by
committing some error of procedure in the course of the trial which is
material in that it may have affected the ultimate decision.3 Section 115
applies only to cases in which no appeal lies, and where the legislature
has provided no right of appeal. The manifest intention of the legislature
is that the order of the trial court, right or wrong, shall be final, except
in specific circumstances. It is, therefore, obvious that unless the case
is not covered under Section 115 of the CPC and the High Court was
satisfied in this regard, then in such a case no power could be exercised
to interfere simply because it differs, however profoundly, with the
conclusions of the subordinate court regarding questions of law and
facts. The scope of jurisdiction of the High Court under Section 115 of
the CPC is limited in relation to concurrent findings of the competent
courts. The exceptions to this rule are when the findings are based on
insufficient evidence, misreading of evidence, non consideration of
material evidence, patent errors of law, consideration of inadmissible
evidence, abuse of jurisdiction, when the conclusions drawn are
perverse and based on conjectural presumptions. The erroneous
decisions of fact are ordinarily not revisable and the mere fact that the
High Court may differ on a question of fact or mixed question of law and
3 Kanwal Nain and others v. Fateh Khan and others (PLD 1983 SC 53)
Umar Dad Khan and another v. Tila Muhammad Khan and others (PLD 1970 SC 288)
CA-648 of 2022.doc
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fact is not a valid ground for interfering with concurrent findings.
Moreover, the concurrent findings recorded on the basis of evidence is
not susceptible to further review to justify interference by the High
Court in revisional jurisdiction. The interference by a High Court in
such jurisdiction would not be justified on the ground that reappraisal
of evidence might suggest another view of the matter unless there has
been a gross misreading of evidence and material evidence was
ignored.4 In the case before us the High Court, while setting aside the
concurrent findings, appears to have excluded from its consideration
the principles enunciated by this Court while exercising original
jurisdiction.
7.
For the above reasons, this appeal is allowed and the
impugned judgment of the High Court, dated 06.05.2022, is set aside.
The listed CMA is accordingly disposed of. No order as to costs.
Judge
Judge
Judge
Islamabad
17.01.2024
APPROVED FOR REPORTING
M. Azhar Malik/Rameen Moin*
4 Mai Rashid Beg v. Rehmat Ullah Khan and others (PLD 2001 SC 443)
Khan Mir Daud Khan and others v. Mahrullah and others (PLD 2001 SC 67)
Suleman v. Mst. Zeenat Jan and others (PLD 2003 SC 362)
Imam Din and others v. Bashir Ahmed and others (PLD 2005 SC 418)
Asmatullah v. Amanat Ullah thr. LRs. (PLD 2008 SC 155)
Atiq ur Rehman and another v. Muhammad Amin (PLD 2006 SC 309)
Ahmed Nawaz Khan v. Muhammad Jaffar Khan and another (2010 SCMR 984)
Administrator Thal Development and others v. Ali Muhammad (2012 SCMR 730)
Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373
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