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Civil Petition for Special Leave to Appeal No. 706 of 1975, decided on 2nd December, 1980.
(On appeal from the judgment and order of the Lahore High Court, dated 28‑4‑1975, in R.S.A. 206 of 1964).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S.100 Misreading of evidence‑‑High Court attending to all evidence very carefully and in an analytical manner‑‑Pointing out mistakes of subordinate Courts in form of omission/ misreading due to which it had to interfere High Court justified in reversing judgments of Courts below in second appeal and there being no sufficient reason to interfere, leave to appeal refused.
A. H. . Najfi, Advocate Supreme Court and S. Wajid Hussain, Advocate‑on‑Record for Petitioners.
‑‑This is a petition against an order of the High Court, dated 28‑4‑1975, whereby it accepted R.S.A. 206/64 of Allah Ditta vendee/ defendant/respondent and reversing the judgments and decree of the Courts below dismissed the suit of Noor Muhammad plaintiff /present petitioner, on the ground that he had not established the existence of a custom of pre‑emption in the town of Pasrur where the property is located on the date of the promulgation of the Punjab Pre‑emption Act, I of 1913, as contemplated in section 7 thereof.
2. The first point argued by the learned counsel was that there was no issue which required his client to prove the existence of the relevant custom on the aforesaid date, and for this reason he did not lead the requisite evidence, and as such in the absence of any issue, the High Court should not have accepted the second appeal of the vendee on the ground abovementioned. The contention has no merit. The plaintiff had himself pleaded in hit plaint (which was read out before us) that he was basing his claim on the existence of a custom. The existence of the alleged custom was denied by the vendee and thereupon an issue regarding the existence of custom was duly framed: In these circumstances the plea of the learned counsel that there was no issue on the subject has no merit and is hereby repelled.
3. When confronted with this situation the learned counsel submitted that the issue did not specifically mention the precise date on which the existence of custom was to be proved by his client namely, the date of the promulgation of the Punjab Pre‑emption Act 1 of 1913 as contemplated in its section 7. This argument also has no merit because the issue was comprehensive enough to cover the pleadings of the plaintiff himself and if he has failed to prove his own pleas, it is he who is to suffer from the same and nobody else.
4. In the alternative the learned counsel lastly submitted that in any case the evidence which has come on the record is enough to prove the existence of custom of, pre‑emption on the aforesaid date. The High Court has attended to all the evidence aforesaid very carefully in an analytical manner and the learned counsel could not point out any mistake therein before us. The High Court while analysing the aforesaid evidence also pointed out the mistakes of the subordinate' Courts in the form of misreading of evidence or its omission on their part due to which the High Court observed that it had to interfere in the second appeal before it. We have gone, through the judgment of the High Court and we find no sufficient reason to disturb the same.
5. The result is that this petition has no merit and is dismissed.
M.I. Petition dismissed.
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