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Civil Appeal No. 36‑P of 1975, decided on 5th March, 1986.
(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 25‑3‑1975, passed in Civil Revision No. 106 of 1973).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 115‑‑Leave to appeal granted to consider whether High Court could have in revision, in facts and circumstances of case, entered upon a re-appraisement of evidence in its revisional jurisdiction.
‑‑‑S. 115‑‑Revisional jurisdiction‑‑High Court when interfering under cl.(c) of 5.115, Civil Procedure Code, held could pass any order which it deemed fit on discovery that material evidence had been ignored or misread and hold that case fell within second part of cl.(c) of S.115‑‑High Court having noticed error committed by lower Court could remand case or correct error.
‑‑Arts. 185(3) & 199‑‑Question of fact Constitutional‑jurisdiction‑ Question of fact resolved by High Court in a detailed well‑considered judgment‑‑Re‑examination and reappraisal of evidence ;by Supreme Court, held, not proper.
Abdul Samad Khan, Advocate‑on‑Record, Mian M. Younis Shah, Senior Advocate Supreme Court for Appellants.
M. Qasim Imam, Advocate‑on‑Record (absent) for Respondent.
Date of hearing: 5th March, 1986.
‑‑This appeal through leave of this Court is directed against judgment, dated 25th of March, 1975 of the Peshawar High Court; whereby a Civil Revision filed by the respondent‑side, was allowed.
The suit property measuring about 132 Kanals, 11 Marlas originally belonged to one Painda Khan. He is alleged to have sold it to the appellant‑side in consideration of Rs.16,500. Painda Khan had only one daughter namely, Mst. Barani. She did not accept this transaction as genuine and accordingly filed a suit for the cancellation of the sale. It was dismissed by the trial Court. She also failed in appeal before the District Judge. On a Revision filed by her in the High Court, learned Single Judge re‑examined the evidence and set aside the concurrent findings of the two Courts below and decreed the suit of Mst. Barhni.
It was urged before this Court at the leave granting stage that although the learned Single Judge of the High Court correctly laid down the law after considering a large number of decisions with regard to the scope of the jurisdiction under section 115, C.P.C., the learned Single Judge misapplied that law and committed an error in interfering in revisional jurisdiction of the High Court.
Leave was accordingly granted to consider "whether the High Court could have, in revision, in the facts and circumstances of this case, entered upon a re appraisement of the evidence in its revisionail jurisdiction".
We have heard the learned counsel for both the parties. The question involved in the appeal is very simple. The learned Judge in the High Court clearly stated that the revisional jurisdiction could not be exercised unless the case fell within one of the three alternative clauses of section 115, C.P.C. It is admitted that he also correctly interpreted the law by folding that under Clause (c), particularly, its later part, the High Court has the jurisdiction to interfere when the lower Courts ignored or misread a vital piece of evidence. Learned counsel for the appellants, however, argued that even if it was found by the learned Judge in the High Court that the case required reappraisal of the evidence, the case should have been remanded to the lower Court. This, in our view, was not the only course open, in this case. As already noted, a High Court when interfering under clause (c) of section 115, C.P.C., can pass any order which it deems' fit on the discovery that material evidence had been ignored or misread. The High Court was within its jurisdiction to hold that the case fell within the second part of clause (c) of section 115. That being so, it could as provided by section 115 itself "make such order in the case as it thought fit." In other words, having noticed the error committed by the lower Courts a High Court could remand the case or correct the error. In this case instead of remanding the case and prolonging the litigation a learned Judge corrected the error and thus allowed the Revision Petition.
Not having succeeded on the point on which leave to appeal was granted, learned counsel for the appellants then argued that the High Court itself has not appraised the evidence correctly because it did not attach due importance to the admission of the vendee before a Commission and the value of attestation thereof by the witnesses. Learned counsel for the respondent in reply contended that the Commissioner as also the witnesses were related to the vendee. Be that as it may, the questions of fact having been resolved by the High Court in a detailed well‑considered judgment, we do not consider it proper to re‑examine and reappraise the evidence at this stage.
In the light of the above discussion this appeal is without any merit and is dismissed with costs.
M.Y.H. Appeal dismissed.
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