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Civil Petition for Special Leave to Appeal No. 312 of 1985, decided on 8th September, 1985.
(From the judgment of the. Lahore High Court, Multan Bench, dated 29‑1‑1985 in F. A. O. No. 309 of 1978).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908). O. XLI r. 23 and S. 100‑‑Remand by appellate Court‑‑Order impugned‑‑Appeal dismissed by High Court‑‑Contention raised that it being First Civil Appeal from a remand order, should have been treated as first appeal on facts and principles of S. 100, C. P. C. should not have been applied by High Court, making facts immune from scrutiny‑‑High Court, held, should have itself given finding on disputed facts‑‑Supreme Court‑after thoroughly examining matter, felt convinced that judgment of first appellate Court was based on evidence and upheld same‑‑Leave to appeal refused.
Madan Gopal v . Maran Bepari P L D 1969 S C 617 rel.
Syed H.M. Naqvi, Advocate Supreme Court with Raja Abdul Razzaq, Advocate‑on‑Record for Appellant.
Nemo for Respondents.
Date of hearing: 8th September, 1985.
Leave to appeal has been sought by a vendee from judgment, dated 29‑1‑1985 of Lahore High Court; whereby a Civil First Appeal from a remand order filed by the petitioner, was dismissed. It had arisen out of the remand order passed by the First Appellate Court after a finding in a pre‑emption matter: that a transaction held by the trial Court to be gift made to the petitioner was in fact sale so as to make it possible to protect it against a claim of pre‑emption.
2. Learned counsel has contended that it was first appeal from a remand order, therefore, it should have been treated as first appeal on facts and principles of section 100, C.P.C., should not have been applied by the High Court making the facts immune from scrutiny.
3. We agree that it was first appeal but not in the first Court of appeal in ordinary sense. After the trial Court decision the first appellate forum had examined the facts. That Court was examining it for the second time. If it would not have been for the decision of the remaining issues, it would not have been a case of remand. Be that as it may there is force in the argument of the learned counsel that the High Court should have itself given a finding on the disputed facts. It is so because in our view when there are two judgments of variance by the lower Courts, the High Court is required to follow the rule laid down in the case of Madan Gopal v. Maran Beyari P L D 1969 S C 617.
4. We have, however, in order to do justice in the same following the said rule compare both judgments on the controversy relating to the nature of the disputed transaction and have also examined the material in that behalf. We also asked various questions from the learned counsel for the petitioner regarding the nature and continuity of rela tionship between the so‑called donor and the donee. This exercise, in deeper scrutiny, has convinced us that the first appellate judgment, as compared to that of the trial Court, is based on evidence, is more in accord with natural human conduct and is far more rational. The same would have been the result if the High Court would have done the exercise. We accordingly while upholding the impugned judgments do not consider it a fit case for grant of leave to appeal. The same is refused.
M.I. Leave refused.
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