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Civil Petition for Special Leave to Appeal No. 93‑D of 1969, decided on 9th December 1969.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated 3rd April 1969, in Appeal from Appellate Decree No. 996 of 1964).
S. 100‑Second appeal Order of first appellate Court defective and requiring disposal of appeal in accordance with law‑Question whether High Court, in circumstance, had to remand case or dispose of it on merits itself‑Special Leave to Appeal granted by Supreme Court to consider question.
Khondkar Mahbubuddin Ahmad, Advocate Supreme Court instructed by Abu Backkar, Senior Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 9th December 1969.
The petitioner was the defendant in a suit brought by the respondents herein. The suit was one for setting aside a kobala on the ground that it was obtained from one Ashraf Jan by fraud and without payment of any consideration. The plaintiffs claimed through the said Ashraf Jan. The suit was contested by the petitioner denying the plaintiffs' allegation. The trial Court decreed the suit declaring the defendant's kobala obtained from Ashraf Jan to be a fraudulent and an illegal document. On the defendant's appeal, the trial Court's decree was set aside and the suit was dismissed. The plaintiffs preferred a second appeal to the High Court of East Pakistan. A learned Single Judge of that Court allowed the second appeal, set aside the decree of the first appellate Court and restored the decree of the trial Court. The petitioner now seeks special leave to appeal from the judgment of the High Court passed in the second appeal.
Mr. Khondkar Mahbubuddin Ahmad, learned counsel submits that in dealing with the second appeal the High Court exceeded its jurisdiction and dealt with the evidence as if it were acting as a Court of fact. The further contention of the learned counsel is that the judgment of the High Court was not a proper judgment of reversal as the learned Single Judge misread the evidence. The last contention of the learned counsel is that if there was at all any defect in the judg ment of the first appellate Court, the proper course for the High Court was to remand the case to that Court for re hearing of the first appeal according to law. The points raised merit consideration. Leave is, accordingly, granted to consider the same.
Security shall be in the sum of Rs. 1,000.
Leave granted.
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