IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Revision Application No. 35 of 2012
Applicant(s): Imam Bux Chandio
Through Mr. Abid Hussain Qadri & Vinod Kumar, Advocate.
Respondent(s): Khamiso Khan Laghari & others
Through Mr. Rab Nawaz Soomro, Advocate.
Mr. Abdul Rasheed Soomro, state counsel
Date of hearing: 19.11.2018
Date of decision: 19.11.2018
O R D E R
KHADIM HUSSAIN TUNIO, J. – This Civil Revision Application has been filed by the applicants against the order passed on 19.01.2012 by the learned Additional District Judge, Shahdadkot in Civil Appeal No.23 of 2011, whereby the impugned order dated 25.08.2011 passed by the learned Senior Civil Judge, Shahdadkot in FC Suit No.20 of 2011 filed by the applicant against the respondent No.1 was maintained. The applicant has preferred the above revision application and has prayed that after analysing of the evidence, the impugned judgments and decree, passed by learned two courts below may be set aside and the case be remanded back to the trial court for framing issues and offering the opportunity to parties for leading their evidence and decide the suit on merits.
2. Succinctly, facts of the case are that applicant/plaintiff Imam Bux filed suit, stating therein that the agricultural land bearing survey Nos. 390/1, 390/1-A, 390/2, 390/3, 390/4 total area 15-3 acres situated in Deh Kalhora Taluka Shahdadkot, granted to him in the year 1992/93 by the Colonization Offier, Sukkur Barrage. He paid all due instalments regarding such grant and T.O was issued vide No. MHO/T.O/358 of 2008 dated 03.09.2008 and as such the revenue entry was effected in his name vide entry No.40 of Form VII-B dated 09.02.2009. The applicant has been in physical possession of the suit land and has spent large amount in its development, to make it suitable for cultivation. The applicant raised a bank to prevent the suit land from saline water coming from the lands of respondents No.1 & 2 while the respondents have multiple times breached the bank to cause damage to the agricultural land of the applicant. The applicant has agitated many times against the respondents’ actions, but all went in vain. Since the grant of the suit land no appeal against the grant was filed until a period of almost 17 years had passed. On the instigation of respondent No.2, respondent No.1 has filed L.G appeal against the grant of applicant/plaintiff regarding suit land and after lapse of about 18 years, but since the defendants are under the protection of so-called not-maintainable appeal, the respondents have been making attempts to dispossess the applicant’s suit land and have also been trying to flow more saline water in order to damage his property. Therefore, the applicant filed F. C. Suit No. 20/2011. After filing of application u/o VII, Rule 11 CPC by the defendants, the learned trial court rejected the pliant of the Suit of applicant U/O 7 Rule 11 C.P.C holding the same as barred by time and the trial court further held that the applicant did not have a cause of action to file the suit in the first place.
3. Applicant filed Civil Appeal No. 23 of 2011 with the court of Additional District Judge, Shahdadkot which was dismissed while the judgment and decree passed by learned trial court was maintained.
4. Learned counsel for the applicant has argued that the learned Senior Civil Judge and Additional District Judge, Shahdadkot have passed erring and void impugned orders. He has argued that the Senior Civil Judge, Larkana has committed serious material irregularity by rejecting the plaint under Order VII Rule 11, CPC without going through material placed on record. He has contended that both the courts below have accepted version of the respondent and have discarded the pleadings of the applicant. He has further contended that both the orders and decrees passed by both courts below are not sustainable and are liable to be set aside, the case is liable to be remanded back for decisions to be made on merits.
5. Learned counsel for Respondents argued that the findings of the two courts below are sound and speaking; that they have issued proper reasons and rightly rejected the plaint of the suit of the applicant; there are concurrent findings hence interference be not made unless as applicant failed to show any illegality therein, therefore present Civil Revision Application may be dismissed.
6. Learned state counsel half-heartedly supported the impugned judgments.
7. Before entering into the merits of the case, I would like to draw a line in exercising revisional jurisdiction by this Court against concurrent findings of two courts below on ‘question of fact’ and that ‘question of law’. There can be no denial to the legal position that criterion to decide an application under Order 7 rule 11 CPC is entirely different from the one whereby a court of law answers an ‘issue’ on basis of led evidences by respective parties. The evidences must always be evaluated on basis of ‘balance of probabilities’ while rejection of plaint could only be recorded if the plaint, prima facie, appears to be barred by some legal impediments.
There is another material difference that in consequence to evaluation of evidences, normally, the rights and liabilities of parties are determined but rejection of the plaint may not, stricto sensu, could be applied so because the objective whereof is only to put an end to a litigation at very initial stage when full-fledged trial appears to be nothing but a futile exercise. The reference is made to case of MFMY Industries Ltd. V. Federation of Pakistan 2015 SCMR 1549 it is held as:-
“5. Termination of a lis undoubtedly is through a verdict of a court which is a decision disposing of a matter in dispute before it (the Court) and in legal parlance, it is called a JUDGMENT’ . It is invariably known that a Judge finally speaks through his judgment. According to Black’s Law Dictionary, a judgment has been defined to mean ‘A court’s final determination of the rights and obligations of the parties in a case’ and per Henry Campbell Black, A Treatise on the Law of Judgment ‘An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked.’ These definitions are adequately self-explanatory. In our procedural law (civil) , judgment as defined in Section 2(9) of Code of Civil Procedure means “the statement given by the judge of the rounds of a decree or order’. It should be emphasized here that a judgment should supply adequate reasons for the conclusion reached and arrived at and should be reflective of application of proper judicial mind by the Judge and it should not be a mechanical and not speaking judgment in nature.’
The scope of O. VII r 11 CPC has, so, been defined in the case of Noor din & another v. ADJ, Lahore & Ors 2014 SCMR 513 as:-
“5. …The object of the powers conferred upon the trial court under Order VII, Rule 11 CPC is that the Court must put an end to the litigation at the very initial stage when on account of some legal impediments full fledged trial will be a futile exercise.
Since, it is not an undisputed position that both the courts below have found the suit / plaint of the applicant as not maintainable within meaning of Order VII R 11 CPC, therefore, I am of the view that in such like situation, normally, the question of law would be involved hence concurrent findings alone would never be sufficient from debarring the Revisional Court in examining the order (s) of subordinate courts on grounds, so detailed in section 151 CPC itself. Needful to add that such jurisdiction even could well be exercised without any application but mere ‘knowledge / notice’ is sufficient. The law, normally, has placed no embargo of time and stage in raising a pure question of law. Reference may well be made to the case, reported as PLD 2006 SC 602, wherein it is observed as:-
“Whenever there is a pure question of law it can be raised at any time, either by the party or taken up by he court itself, and the duty to decide same in accordance with law cannot be avoided on an untenable alibi (of not having raised by a party).e ignorance of a litigant or of his counsel because this duty flows from the Constitution.
The above discussion, however, shall not prejudice to the legal position that even in such like concurrent findings on a question of law, the party shall have to establish a prima facie illegality in such question. One cannot deny the legal position that first and prime consideration to initiate a lis shall always be establishing ‘legal character’ and in absence thereof no lis could be initiated.
Perusal of the record shows that the courts below were justified in holding that no cause of action had accrued to the applicant as it is an undisputed fact, at this point, that the applicant was dispensed from his right to ownership of suit land on 12.05.2011, whereas he filed the suit on 14.05.2011. This prima facie shows that the applicant, at time of filing of suit, was having no concern with the suit land hence legally cannot seek any declaration in respect thereof. In addition to this, prima facie, while filing of the suit, the applicant kept the fact regarding him no longer being the owner of the suit land hidden, with ulterior motives. This also establishes that he (applicant) did not approach the Court with clean hands. Such alone would be sufficient for denying a relief from a court of law which shall always stand with ‘equity & fair-play’. Since the applicant was no longer the owner of the suit on the day of filing of the suit, it could no longer be held that he had a cause of action to file the suit. Even otherwise, the prayer of the applicant in the suit does not suggest that he prayed for the order of E.D.O to be held as illegal or ultra vires despite the fact that he was already dispensed from his ownership of the suit land.
In the light of above discussion and circumstances, the learned two courts below rightly dismissed the suit of the applicant, while assigning sound reasons and the same call for no interference by this court. Therefore, present Civil Revision Application No. 35 of 2012 was dismissed vide my short order dated 19.11.2018.
These are the reasons for the same.
J U D G E