Mst. NASIR BIBI and others VS MUHAMMAD SHAFIQUE AHMAD and another, 2007 PTD-SUPREME-COURT 1279 (2007)

(On appeal from the judgment/order, dated 15-5-2002 passed by the Lahore High Court, Lahore in R.F.A. No.184 of 1994).

Income Tax Ordinance (XXXI of 1979)---

----S. 136---Constitution of Pakistan (1973), Art.185(3)---Appeal to High Court---Issue not raised before Income Tax' Appellate Tribunal---High Court not giving any finding on such issue---Grievance of assessee was that out of three referred questions High Court had replied two, while. no finding was given on third question---Validity---At no stage of proceedings -any question had arisen whether assessee being a limited company was a person incapable of incurring expenses on travelling, telephone and the like, which was liable to be deleted and disallowed for the purpose of computing taxable income of the assessee---Other two questions were answered by High Court in affirmative as the amount of gratuities payable to employees was a proper charge on the income of the assessee and was, therefore, admissible as an expense---High Court was justified in taking the view that the third question was never raised before the Tribunal for the purpose of S.136 of Income Tax Ordinance, 1979---Judgment of High Court was correct to which no exception could be taken---Leave to appeal was refused.

Nazar Muhammad's case PLD 1974 SC 22; Ashfaq-ur-Rehman's case PLD 1971 SC 766; Thakurdas and another v. Topandas and others AIR 1929 Sindh 217 and Ghansham Singh Tirathsingh and another v. Mohamed Yaqoob AIR 1933 Sindh 257 rel.

Pir Saeed Kaleem Khurshid, Advocate Supreme Court for Petitioners.

Mahmood Khan, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Respondents.

ORDER

CH. IJAZ AHMED, J.--- The brief facts out of which the present petition arises are that the respondent No.1 filed suit for specific performance in the Court of Civil Judge, Kasur on 27-8-1991 against the petitioners and respondent No.2. Contents of the plaint reveal that property in question measuring 120 Kanals, 19 Marlas was originally owned by one Naseer Ahmad who agreed to sell the property to respondent No.1 vide agreement to sell dated 29-5-1990 for consideration of Rs.4,50,000. Original owner received Rs.2,75,000 from respondent No.1 at the time of the execution of the agreement as earnest money and the balance amount was to be paid at the time of the execution of the registered sale-deed. The possession of the property in question was handed over to the respondent at the time of execution of the said agreement. Respondent No.1 is possessing the property as owner since then. Original owner Naseer Ahmad died on 14-4-1991. Respondent No. l went to his legal heirs for specific performance of the said agreement but they avoided. Petitioners filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 8 issues and, after recording the evidence of the parties, decreed the suit of the respondent vide judgment and decree, dated 16-6-1994. Petitioners being aggrieved filed R.F.A. in the Lahore High Court which was dismissed vide judgment dated 15-5-2002. Hence, the present petition.

2. The learned counsel for the petitioners submits that agreement to 'sell was executed between the respondent No.1 and original owner Naseer Ahmad on 29-5-1990 and respondent No.1 did not file suit for specific performance in the life time of said original owner. The original owner died on 14-4-1991 and respondent filed suit on 27-8-1991 just after few months after his death. He further urges that learned Courts below had decided the case in favour of the respondent No.1 in violation of Article 17(2) read with Article 79 of Qanun-e-Shahadat Order, 1984. He further maintains that respondent had produced only one attesting witness namely Mehr Din P.W.3 and did not produce other attesting witness Abdul Sattar. He further urges that both the Courts below had erred in law to consider Sardar Khan P.W.2 scribe of the document as attesting witness. He further maintains that agreement to sell was written on a blank paper and this fact is sufficient that agreement was bogus but this fact was not considered by the Courts below in its true perspective.

3. The learned counsel for the respondents has supported the impugned judgment.

4. We have considered the submissions made by counsel for the parties and perused the record. Both the Courts below have concurrently come to the conclusion that respondent No.1/plaintiff had proved the execution and contents of the agreement to sell. The learned High Court had taken lot of pain to reconsider the evidence on record as evident from para.3 of the impugned judgment and also consider evidence on record as depicted from para.5 of the impugned judgment. It is pertinent to mention here that petitioner had raised only one plea before the learned High Court qua the ailment of the original owner Ch. Naseer Ahmad as evident from para.4 of the impugned judgment. Both the Courts below had given finding of fact against the petitioners that petitioners had pleaded fraud in the defence and claimed that Exh.P.I agreement to sell is the product of fraud. It is pertinent to mention here that neither in the plaint nor in the statement of D.W.5 the particulars of fraud are specified or proved and in fact as mentioned above the learned High Court had given finding of fact against the petitioner that respondent No.1/plaintiff had duly proved the execution of the agreement to sell and also payment of consideration amounting to Rs.2,75,000 to the deceased Naseer Ahmad. It is a settled law that parties are bound by their pleadings as law laid down by this Court in Nazar Muhammad's case PLD 1974 SC 22. The petitioner's counsel has pressed only one ground qua ailment of the original owner before the learned High Court as mentioned above and depicted from para.4 of the impugned judgment. It is settled proposition of law that grounds which were not urged before the High Court could not be urged before this Court as law laid down by this Court in Ashfaq-ur-Rehman's case PLD 1971 SC 766. However, in the interest of justice and fair play, we have gone through the material on record and come to the conclusion that pleas raised by the learned counsel for the petitioners have no force. Sardar Khan scribe of the document in question is also an attesting witness in view of his statement and the law laid down by this Court. See Thakurdas and another v. Topandas and others AIR 1929 Sindh 217 and Ghansham Singh Tirathsingh and another v. Mohamed Yacoob AIR 1933 Sindh 257. It is a settled law that this Court as a rule should give due weight and consideration to the opinion of the Courts below. Normally, this Court does not interfere with the findings of fact reached by the Courts below when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. This being the practice and the rule of the Court in civil petitions, the burden lies rather heavily on the petitioners to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. The learned counsel for the petitioners has failed to bring the case within the aforesaid parameters prescribed by this Court in various pronouncements. It is settled principle of law that constitutional jurisdiction cannot be exercised against the concurrent conclusions arrived at by the Courts below as law laid down by this Court in Khuda Bukhsh's case 1974 SCMR 279. It is a settled law that this Court cannot substitute its own findings in place of the findings of the Courts below while exercising constitutional power as law laid down by this Court in Syed Azmat Ali's case PLD 1964 SC 260. It is also a settled law that constitutional jurisdiction is equitable jurisdiction. Keeping in view the facts and circumstances of this case, we are not inclined to exercise our discretion in favour of the petitioners as law laid down by this Court in Nawabzada Raunak Ali's case PLD 1973 SC 236.

5. For what has been discussed above, the petition has no merit and the same is dismissed. Leave refused.

M.H./N-3/SCPetition dismissed.