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Civil Petition for Special Leave Appeal No. 223/R of 1981, decided on 14th November, 1982.
(Against the judgment dated 19‑10‑1981 of Peshawar High Court, Circuit Bench, Abbottebad, in Civil Revision No. 98 of 1980).
---- Art. 185(3) read with Civil Procedure Code V of 1908), S. 115 Concurrent finding of fact recorded by lower Courts found suffering from manifest misreading and non‑reading of evidence on a material point affecting application of law‑Held, rightly interfered with by High Court in exercise of its revisional powers ‑Leave to appeal refused.
Maulvi Siraj‑ul‑Haq, Advocate Supreme Court with Muhammad Afzal Siddiqi, Advocate‑on‑Record for Petitioners.
Ch. Akhtar Ali, Advocate‑on‑Record for Respondent.
Date of bearing: 14th.November 1982.
The petitioners who are the unsuccessful plaintiffs seek leave to appeal against the judgment of the Peshawar High Court dated 19‑10‑1981 whereby a civil revision petition filed by the respondent was accepted, the concurrent finding of fact recorded by the two Courts below was set aside and the suit of the plaintiff was dismissed.
Mst. Noor Nisa purchased a small house in Haripur town by a registered deed. The plaintiffs‑petitioners claimed a right of pre‑emption in respect of it being the owner of contiguous property and participants in the immunities and appendages. The respondent claimed exemption for the sale under section' 5 (d) of the N: W. F. P. Pre‑emption Act. The trial Court and the first appellate Court denied this exemption on the ground that Noor Nisa respondent was not resident of Haripur but resident of a village known as Mehlum.
The High Court found and it has not been disputed as a fact that Mst. Noor Nisa was residing with her parents before her marriage at Mehlum but after her marriage and for the last twenty‑five years she was residing with her husband in Haripur. This appears on the surface from the evi dence recorded in the case. The High Court held that not only there was misreading of evidence but material evidence on the subject bad been to tally ignored. It was in this background that the concurrent finding re corded by the two Courts on the question of fact was reversed.
It cannot be seriously disputed that where a manifest misreading of evidence on a material point affecting the application of law is involv ed or material evidence has been altogether ignored, the revisional powers can be appropriately exercised as it would not be proper exercise o jurisdiction possessed by the fact finding Courts. We, on appraisal of the portions omitted or ignored, find that this is abundantly borne out from the record and the interference was called for. Leave to appeal is, therefore refused.
S. Q.
Leave refused.
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