--O.XLI R. 31--Suit for declaration, permanent injunction, cancellation of mutation--

 PLJ 2021 Quetta (Note) 129

Civil Procedure Code, 1908 (V of 1908)--

----O.XLI R. 31--Suit for declaration, permanent injunction, cancellation of mutation--Dismissed--Appeal--Concurrent findings--Challenge to--It appears from record that judgment and decree of appellate Court is not according with provisions of Order XLI Rule 31, CPC--It is mandatory upon appellate Court to state points for determination, decision thereon, reasons for decision and where decree appealed from is reversed or varied--Appellate Court should state points for determination and apply its independent judicial mind to controversy involved between parties--Phrase “points for determination” referred in Rule 31 (a) of Order XLI, CPC refers to all important questions involved in case--Revision petition accepted.

                                                                           [Para 3 & 4] A, B & C

2012 YLR 2108 (Sindh) ref.

Mr. Gul Hassan Advocate for Petitioners.

Mr. Bangul Marri Advocate for Respondent No. 1.

Mr. Kaleemullah Kakar Advocate for Respondent No. 3.

Mr. Bilal Mohsin, Advocate for Respondent No. 6 and Mr. Ahmed Yar Assistant Advocate General for official Respondents.

Date of hearing: 6.11.2020.

 PLJ 2021 Quetta (Note) 129
Present: Abdul Hameed Baloch, J.
NIAMATULLAH and 2 others---Petitioners
versus
ESSA KHAN and 9 others--Respondents
C.R. No. 323 of 2016, decided on 18.11.2020.

Judgment

Through this judgment I Intend to dispose of above tilted civil revision petition filed by the petitioners/plaintiffs against the judgments and decrees dated 30th March, 2016 and 30th June, 2016 (impugned judgments and decrees) passed by learned Civil Judge, Duki and learned Additional District Judge, Loralai (trial and appellate Court) respectively, whereby the suit of the petitioners/plaintiffs was dismissed and appeal filed by the petitioners/ plaintiffs was also dismissed.

2. Concise facts of the case are that the petitioners/plaintiffs filed amended representative suit for declaration, permanent injunction, cancellation of Mutation No. 240 dated 16th July, 1975, Mouza Viala Duki and partition of land bearing khasra No. 1066, 1185, 1187, 3-Qilas, measuring 241 rods 33 poles Mouza Viala Duki Halqa Saddar Thsil Duki, which was contested by the respondents/ defendants on legal as well as tactual grounds by filing written statements. The trial Court framed issues, on which the parties led their respective evidence.

On conclusion the learned trial Court heard arguments and thereafter, vide impugned judgment and decree dated 30th March, 2016 dismissed the suit of the petitioners/plaintiffs. Being aggrieved of the same the petitioners/plaintiffs preferred appeal but the same was also dismissed vide impugned judgment and decree dated 30th June, 2016 by learned Additional District Judge, Loralai, hence this revision petition.

3. I have perused the record, which reveals that the petitioners/plaintiffs filed a suit, which was contested by the respondents/defendants by filing separate written statements. On conclusion the trial Court dismissed the suit vide impugned judgment and decree dated 30th March, 2016. The learned appellate Court upheld the judgment and decree of the trial Court vide impugned judgment and decree dated 30th June, 2016. It appears from the record that the judgment and decree of the learned appellate Court is not according with the provisions of Order XLI Rule 31, CPC. It would be appropriate to reproduce Order XLI Rule 31, CPC:

“Order XLI Rule 31. The judgment of the Appellate Court shall be in writing and shall state -

a. the points for determination;

b. the decision thereon;

c. the reasons for the decision; and,

d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled:

          and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

4. Under the referred to Rule it is mandatory upon the appellate Court to state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied. The appellate Court should state points for determination and apply its independent judicial mind to the controversy involved between the parties. The phrase “points for determination” referred in Rule 31 (a) of Order XLI, CPC refers to all important questions involved in the case. Reference is made to the case of Gul Muhammad v. Kaimuddin 2012 YLR 2018 [Sindh], wherein it was held:

“8. The statutory right of appeal confers the right of rehearing the whole dispute unless expressly restricted in its scope and the appellate Court, is not confined to the reasons which have been given by the subordinate Court or the grounds for its decision. The right of appeal is a substantive and vested right and not as a matter of mere procedure. According to Order XLI, Rule 31, C.P.C., it is mandatory that judgment passed, by the appellate Court shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which, the appellant is entitled. This rule makes it apparent that for just and proper decision, the appellate Court should state the points for determination and apply its independent judicial mind to the controversy involved between the parties and also examine the record for the purposes of pronouncing its judgment. The phrase “points for determination” refers to all important questions involved in the case, therefore, this rule has been incorporated in the Code for framing the points for determination so that the judgment should be self-explanatory, illuminative and in the nature of a speaking order.

9. Every finding of fact is not immune from interference in revisional jurisdiction when the Courts below commit jurisdictional illegality and this concept of jurisdictional illegality has been considered by the honourable Supreme Court in the case of Kanwal Main PLD 1983 SC 53 and held that to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result, revisional jurisdiction is justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken. In 2010 SCMR 786, Brig. (R) Sher Afghan v. Mst. Sheeren Tahira and others, it was held that by now a well-settled principle of exercise of revisional jurisdiction under Section 115, C.P.C. is that if a finding of first Court of Appeal is based on no evidence or is arbitrary and fallacious, the Revisional Court is not denuded of its power to interfere with such a finding. This view was reiterated in Naziran Begum v. Khurshid Begum 1999 SCMR 1171 wherein it was held a finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by ihe High Court in exercise of its power under Section 100 or 115, C.P.C. In 2008 SCMR 1454, (Nabi Bakhsh v. Fazal Hussain), it was held that no exception could be taken to the exercise of revisional powers and setting aside of the findings of the lower Courts even if they be concurrent if it had found that the said findings were based on misreading or non-reading of the material available on record. Similarly, in 2007 SCMR 838, (Ch. Muhammad Shafi v. Shamim Khartum, it was held that First Appellate Court has a right to reverse the finding/conclusions of the trial Court while exercising power under Section 96 of the C.P.C. subject to the condition that First Appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal’s case PLD 1969 SC 617. The High Court has wide power to reverse the finding of the First Appellate Court while exercising power under Section 115, C.P.C. having supervisory jurisdiction.”

In view of the above discussion the instant civil revision petition is accepted. The judgment and decree dated 30th June, 2016 passed by learned Additional District Judge, Loralai is set aside and appeal is remanded to the appellate Court for decision afresh in accordance with the provisions of Order XLI Rule 31, CPC after hearing the parties. The parties are left to bear their own costs.

(M.M.R.)         Petition accepted