2011 C L C 1105
[Quetta]
Before Muhammad Noor Maskanzai, J
OBAIDULLAH ----Petitioner
Versus
Haji SHER MUHAMMAD ----Respondent
Civil Revision No.195 of 2005, decided on 24th December, 2010.
Civil Procedure Code (V of 1908) ---
----S. 115 ---Specific Relief Act (I of 1877), Ss.42 & 54 ---Suit for declaration and permanent
injunction ---Both the Trial Court and lower Appellate Court had concurrently dismissed the
suit---Trial Court after proper appraisal of material availa ble on the record had drawn
justifiable conclusion ---Appellate Court upheld judgment and decree passed by the Trial
Court considering evidence available on record. --Both the courts below after proper appraisal
of evidence, had reached at concurrent finding s of fact which neither reflected
misappreciation of evidence, nor suffered from any legal infirmity ---Such concurrent findings
of fact were not liable to be disturbed by High Court in exercise of its revisional jurisdiction,
even if upon reappraisal, anot her view was possible.
Abdul Jalil Khan for Petitioner.
Amanullah Kakar for Respondent.
Date of hearing: 11th October, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- This civil revision petition under section 115
C.P.C. is directed against t he judgment and decree dated 29 March, 2005 passed by the
Additional District Judge -1, I Quetta, whereby Civil Appeal No.31 of 2004 filed by the
petitioner was dismissed and the judgment and decree dated 3rd August, 2004 passed by
Civil Judge, Quetta was m aintained.
2. Facts as collected from the record are that petitioner (hereinafter referred to as the plaintiff)
filed a civil suit for declaration and permanent injunction against the predecessor -interest of
respondent (hereinafter referred to as the def endant) in the year, 2002/. It was the case of
petitioner that a hotel and a godown situated at Zhob Road, Kuchlak were leased out to the
plaintiff by the father of respondent against monthly rental amount of Rs.3000 and agreement
dated 28th August, 1988 w as executed between the parties. It was further stated that property
in question was a Kacha construction i.e. of mud. The predecessor -in-interest of defendant
failed to realize his liability with regard to the repair of the property damaged either by rain
or by long span of time. According to plaintiff there was a water vela behind the back wall of
godown which was damaging the said wall. The defendant was requested to stop the flow of
water but he did not adhere to it, with the result on 2nd November, 200 1, the back wall of
godown consisting nine rooms stood demolished. This fact was reported to defendant who
did not pay any attention. Besides, a report/F.I.R. With Police Station, Kuchlak was lodged
which was entered as Report No. 36 in Roznamcha. It was f urther mentioned in the plaint that
eviction application filed against the plaintiff was dismissed on 29th June, 1994 and suit
filed against the petitioners was dismissed on 24th April, 1999:
3. Written statement was filed by the predecessor -in-interest of respondent/defendant,
wherein numbers of preliminary objections were raised. The locus standi was called in
question with further objection i.e. the petitioner/plaintiff has sublet the property. On merits,
the suit was contested and the version in plain t was vehemently denied and disputed.
According to Para No.2 of written statement, the godown has been sublet to one Fatal, who is
using the same as Sheep Dan, which has become useless and a heavy loss has been caused to
the property of defendant and said fact has been confirmed by the report of Civil Nazir
appointed as local commissioner in case title Obaidullah v. Haji Sher Muhammad. The
factum of any villa behind the godown was vehemently disputed with further explanation that
since the godown has been s ublet and is being misused, which resulted in damaging and
dismantling the nine rooms.
4. Out of the pleadings, the learned trial Court framed following issues:
(1) Whether there is a Water Viala behind the back wall of property/godown, due to
which fl owing godown consisting of nine rooms fell down?
(2) Whether the plaintiff is entitled to the relief claimed for?
(3) Relief?
5. Plaintiff in order to discharge his onus produced P.W. Fateh Muhammad and P.W.2 Abdul
Barri and got recorded his own stat ement. On the other hand defendant produced D.W.1
Muhammad Ilyas, D.W.2 Mir Waiz Khan and Abdul Ghani son of Haji Sher Muhammad got
recorded his statement as attorney for defendant. Thereafter, vide judgment and decree dated
3rd August, 2004, the suit file d by the plaintiff was dismissed. Feeling aggrieved with the
judgment, an appeal was filed before District Judge, Quetta, which was made over to
Additional District Judge -I, Quetta. The learned Additional District Judge -I, Quetta after
hearing the parties dismissed the appeal through impugned judgment dated 29 -3-2005
followed by the decree of even date. Dissatisfied with the appellate judgment and decree
present petition has been filed which was dismissed for non -prosecution on 20 -11-2006
however, restored on 8-12-2006.
6. Mr. Abdul Jalil Khan Barakzai, learned counsel for the petitioner contended that the.
impugned judgment and decree passed by the lower forums are contrary to law, facts and
justice. It was maintained that both the Courts below have misap preciated the facts and
misread the evidence available on record. It was contended with vehemence that the appellate
Court did not adhere to the mandatory provisions of Order XLI, Rule 31, C.P.C. nor material
available on record was discussed by the appell ate Court. Learned counsel further contended
that petitioner/ plaintiff has paid rupees one lac and ninety five thousand in advance to the
respondent/defendant besides is also paying monthly rent in sum of Rs.3000 without failure
on the part of petitioner but this fact was not taken into consideration. It was strenuously
urged that the respondent owe a legal duty towards rented premises because as owner he is
bound to repair premises in question.
7 Mr. Amanullah Khan Kakar, learned counsel for the respond ent submitted that both the
courts below after proper appraisal of evidence has rightly dismissed the suit of petitioner. It
was further submitted that the suit filed by the petitioner was not competent because the
petitioner/ plaintiff has sublet the godo wn which was used for the purpose of sheep Dan by
the Subletee. The very purpose of tenancy has been frustrated for which it was rented. There
is no misreading or non -reading nor there is any jurisdictional defect in the impugned
judgments and decrees, the refore, while exercising revisional jurisdiction this Court is very
slow and most often reluctant to interfere with concurrent findings of facts based on proper
appraisal of evidence.
8. I have heard learned counsel for the parties and perused the availa ble record minutely.
Perusal of record reflects that petitioner/ plaintiff in order to prove his case produced three P.
Ws. P.W. Fateh Muhammad supported the plaint. However, plaintiff in cross expressed their
ignorance that in godown cattle are kept. It w as further admitted that at the distance of 4 feet
from wall there is a ditch and thereafter the agricultural land of defendant is situated. He
further expressed his ignorance regarding the distance between the agricultural land and
godown. He denied that the wall has dismantled. Voluntarily. stated that he has no knowledge
that wall has been dismantled by Obaidullah. P.W.2 .Abdul Barri also supported the plaint
but since portions of cross -examination of P.W.2 and statement of P.W.3 have not been
annexed wi th the petition, therefore, statements of P.W.2 and P.W.3 is not liable to be
considered in view of bar contained in subsection (2) of section 115, C.P.C., which is
reproduced hereinunder for ready reference: ---
"2 [Provided that,' where a person makes a n application under this subsection, he
shall, in support of such application, furnish copies of the pleadings, documents and
order of the subordinate Court. And the High Court, shall, except for reasons to be
recorded, dispose of such application without calling for the record of the subordinate
Court,] "
9. The D.Ws. produced by the defendant/respondent has supported his contention. Perusal of
the impugned judgment and decree reveal that the trial Court after proper appraisal of
material available on th e record has drawn justifiable conclusions. The learned counsel for
the petitioner could not point out any misreading or non -reading of evidence. In such
circumstances no exception could be taken with the findings given by the trial Court. As far
as the ob jection regarding non -compliance of provisions of Order XLI, Rule 31, C.P.C. are
concerned I have perused the judgment rendered by the appellate Court. The learned
appellate Court has appreciated the evidence produced by the parties and the material Issue
No.1 which, of course, is the material issue has been considered in the light of evidence
available on record. Moreover, since the judgment of trial Court has been upheld, in such
circumstances the law requires the substantial compliance of the rule which has been
complied with. There is no cavil with the legal proposition that the concurrent findings of fact
cannot be disturbed, even if upon reappraisal, another view is possible. Perusal of plaint
reflects that agreement dated 28 -8-1988 has been referred t o but the same has neither been
appended with plaint nor produced and exhibited in evidence. So much so the said document
has not been placed on record before this Court. Similarly in the list of documents at S.No.4 a
judgment passed by Senior Civil Judge/ Rent Controller Quetta dated 29 -6-1994 has been
referred to but the said judgment also does not form part of the record. Though I am not
going to dismiss the petition for want of non -compliance of subsection (2) of section 115
C.P.C., nonetheless petitione r cannot take the benefit of document and evidence referred to
but not made available, despite the lapse of 5 years.
10. As discussed hereinabove, both the courts below after proper appraisal of evidence
referred to hereinabove have reached at concurrent findings of facts which neither reflect
misappreciation of evidence nor suffer from any legal infirmity. Therefore, the concurrent
findings of fact so arrived at are not liable to be disturbed by this Court in exercise of its
revisional jurisdiction. Henc e I find no merits in this revision petition, which is accordingly
dismissed with no order as to costar
H.B.T./31/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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