Mst. SHAMIM AKHTAR vs MUHAMMAD YOUNIS KHAN S — 2023 MLD 1372 LAHORE-HIGH-COURT-LAHORE

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Mst. SHAMIM AKHTAR VS MUHAMMAD YOUNIS KHAN S. 12---Civil Procedure Code (V of 1908), S. 100---Second appeal---Principles---Suit for specific performance of agreement to sell---Judgments at variance---Appellants/plaintiffs sought specific performance of agreement to sell which suit was decreed in their favour---Lower Appellate Court reversed findings and set aside judgment and decree passed by Trial Court---Validity---Where judgments of Courts below were at variance and High Court was hearing second appeal, preference should be given to judgment of Lower Appellate Court---Such principle of law does not entail its universal application and is not an impregnable and invariable rule of law---Finding of Lower Appellate Court is immune from interference in second appeal if the same is supported and substantiated by logical reasoning and proper appreciation of evidence and is not result of misreading and/or non-reading of evidence---Where findings of Lower Appellate Court are at variance with that of Trial Court, the two will come in for comparison of their merits in light of the facts of the case and the reasons of which the two different and contradictory, if not opposing, findings are respectively proceeded---If judgment of Lower Appellate Court is arbitrary or capricious, it can be rejected---Lower Appellate Court had gone against the weight of available evidence in holding that execution of agreement was not proved although plaintiffs/appellants were steadfast, consistent and unwavering in their stance not only in their pleadings about execution of agreement and receipt but also in their deposition and cross-examination---On the contrary, defendants/respondents did not put any serious challenge to version of plaintiff's witnesses and had made evasive denial of execution of agreement leading to improvement of case through recording evidence beyond pleadings vacillating from one position to another without being able to substantiate either--- High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed, in circumstances.

Mst. SHAMIM AKHTAR vs MUHAMMAD YOUNIS KHAN S — 2023 MLD 1372 LAHORE-HIGH-COURT-LAHORE

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