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Petitioner: NAZIR AHMAD VS Respondent: MUHAMMAD PARVAIZHonorable Justice Ijaz-ul-Hassan KhanHidayatullah Khan,Ziaur Rehman and Aman Khan
2007 C L C 1085
2007 C L C 1085
[Peshawar]
Before Ijaz-ul-Hassan Khan, J
NAZIR AHMAD----Petitioner
Versus
MUHAMMAD PARVAIZ----Respondent
Civil Revision No.1571 of 2004, decided on 14th February, 2007.
(a) Civil Procedure Code (V of 1908)---
----O. VII, R.2 O.XLI, R.31 & S.115---Suit for recovery of amount---Plaintiff filed suit for recovery of amount of salary for the last three years against defendant---Trial Court dismissed suit, but Appellate Court partly allowed suit and defendant had filed revision against judgment and decree of Appellate Court---Appellate Court had adverted to every aspect of the case and had rightly decided relevant issues and rendered a reasonable judgment, which was not open to legitimate exception---Counsel for defendant had not been able to prove that impugned judgment was outcome of misreading or non-reading of evidence or suffered from illegality or material irregularity---Appellate Court had given exhaustive judgment after appraisal of evidence on the file and after discussing all the pros and cons of the case---No legal defect appeared in the impugned judgment which was in consonance with evidence on the file---Nothing could be pointed out effectively and convincingly which could persuade to disagree with findings of the Appellate Court on the issues in question---Appellate Court scanned the entire evidence in true perspective and findings of the court could not be termed either perverse or arbitrary and same were immune from further scrutiny in revision petition---Impugned judgment had been recorded in consonance with the requirements of O.XLI, R.31, C.P.C. and no prejudice seemed to have been caused to defendant---Defendant could neither point out as to which issue was not properly framed nor could point out any material portion of evidence, which was allegedly was overlooked or misread by court below---Neither there appeared to be any misreading of evidence nor any material piece of evidence appeared to have been ignored by the courts below---Revision against judgment and decree of Appellate Court below, was dismissed, in circumstances.
(b) Civil Procedure Code (V of 1908)---
----O. XLI, Rr.25 & 27---Remand of case and production of further evidence--'Appellate and revisional Courts were always empowered to remand case in terms of O.XLI, R.25, C.P.C., but that discretionary power was to be used in exceptional situation---If parties had led evidence with regard to the particular point and the court of first instance by giving specific finding on the said point; decided same in the light of evidence available on record, remand of case in appeal or revision was not proper exercise of jurisdiction---Powers under O.XLI, R.27, C.P.C. were to be exercised only if the court would consider that it would not be able to pronounce judgment without further evidence---Said provision could not be used for the benefit of a party which had not been vigilant enough to see that no weaknesses were left in its case---Power to order remand, was no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental---Party could not be allowed to adduce evidence to do away with the weakness that existed in its case.
Ashiq Ali v. Zameer Fatma PLD 2004 SC' 10 ref.
Hidayatullah Khan for Petitioner.
Ziaur Rehman and Aman Khan for Respondent.
Date of hearing: 21st December, 2006.
JUDGMENT
IJAZ-UL-HASSAN KHAN, J.---Muhammad Pervez, plaintiff filed suit on 24-4-1996, against Nazir Ahmad and others, defendants, in the Court of EAC/DC, Matta, Swat to the effect that in view of agreement deed, dated 7-1-1988 and additional note dated 4-8-1988, defendant No.1 was liable to pay salary for the last three years, amounting to Rs.69,000 and commission to the plaintiff and defendants be restrained from cutting, extraction and transportation of timber from Compartments Nos.37, 41, 42, 44 and 45.
2. As provided by PATA Regulation, Jirga was constituted and the matter was referred to Jirga for resolution. During the pendency of the suit, PATA Regulation was repealed and suit was transferred to Civil Court for adjudication. Amended plaint and written statement were filed. The suit was contested and claim of the petitioner was denied. In view of the divergent pleadings of the parties, as many as 11 issues were framed. The parties were provided opportunity to adduce evidence in support of respective stances.
3. Upon consideration of the material placed before him, learned Civil Judge/Illaqa Qazi, Swat, did not accept the plaintiff's claim, found the suit premature and dismissed the same, by judgment and decree, dated 17-10-2002. An appeal was preferred thereagainst, which partially allowed through judgment, dated 16-9-2004 by learned Additional District Judge/Izafi Zilla Qazi, Matta, Swat, in the following terms: --
4. Nazir Ahmad, petitioner, feeling aggrieved thereby, has filed instant revision petition under section 115, C.P.C., which is before me for consideration.
5. Mr. Hidayatullah Khan, Advocate for the petitioner confined his arguments to the findings pertaining to Issues Nos.3, 7 and 8 and attempted to argue that impugned judgment, dated 16-9-2004 is tainted with illegality of misreading of evidence and suffers from the defect of material irregularity and runs counter to the evidence on file. The learned counsel also contended that mandatory provisions of Order XLI, rule 31, C.P.C. have not been substantially complied with, which has resulted in complete failure of justice. The learned counsel further submitted that issues framed in this case do not fully reflect the pleadings of the parties and the controversy involved has not been properly and effectively resolved. The learned counsel prayed for remand of the case to the Court below for fresh decision.
6. Mr. Zia-ur-Rehman, Advocate for the respondents, on the other hand, refuted the arguments of learned counsel for the petitioner and supported the impugned judgment whole heartedly.
7. Upon the examination of the impugned judgment, I find that the learned Appellate Court adverted to every aspect and rightly decided issues viz. Nos.3, 7 and 8, agitated and rendered a reasoned judgment, which is not open to legitimate exception. Learned counsel for the petitioner has not been able to prove that the impugned judgment is the outcome of misreading and non-reading of evidence or suffers from illegality or material irregularity. The Court has given exhaustive judgment after due appraisal of evidence on the file and after discussing all the prones and cones of the case. There appears to be no legal defect in the judgment, which is in consonance with the evidence on the file. Nothing could be pointed out effectively and convincingly which may persuade me to disagree with the findings of the Court below on the issues in question. The learned Appellate Judge has scanned the entire evidence in true perspective and his findings cannot be termed either perverse or arbitrary. The same are immune from further scrutiny in a petition under section 115, C.P.C.
8. Adverting to the objection regarding non-compliance of provisions of Order XLI, rule 31, C.P.C., it needs no emphasis that an appellate judgment should state the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the Appellate Court to record the points for determination, so that it can be determined whether the Court has dealt with all the points. The Appellate Court must state its reasons for the decision. The provisions of Order XLI, rule 31, C.P.C. are mandatory. In the instant case, the impugned judgment has been recorded in consonance with the requirements of Order XLI, rule 31, C.P.C. and no prejudice seems to have been caused to the petitioner.
9. Adverting to the objection regarding non-framing of proper issues, learned counsel for the petitioner could neither point out as to which issue was not proper framed nor he could draw my attention to any material portion of evidence, which was overlooked or misread by the Court below. Neither there appears to be any misreading of evidence nor any material piece of evidence appears to be have been ignored by the Court below.
10. Attending to the last objection, regarding remand of the case, the appellate and the revisional Court is always empowered to remand the case in terms of Order XLI, rule 25, C.P.C. but this discretionary power is used only in exceptional situation and if the parties have led evidence with regard to the particular point and the Court of first instance by giving specific finding on the said point decided the same in the light of evidence available on record, the remand of the case in appeal or revision is not proper exercise of jurisdiction. Needless to emphasize that power under Order XLI, rule 27, C.P.C. are to be exercised only if the Court considers that it would not be able to pronounce judgment without further evidence, and this provision cannot be used for the benefit of a party which has riot been vigilant enough to see that no weaknesses are left in its case. The power to order remand is no doubt wide, but it should be exercised only in those cases wherein omission of a party was accidental. 'A party cannot be allowed to adduce evidence to do away with the weakness that exists in its case Ashiq Ali v. Zameer Fatima PLD 2004 SC 10.
Pursuant to above finding no merit in this revision petition, I dismiss the same and allow the parties to bear their own costs.
H.B.T./93/P Revision dismissed.