ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

R. A. No. S – 26 & 27 of 2009

Date of hearing

Order with signature of Judge

Hearing of cases (Priority)

1. For hearing of CMA No.1588/2018

2. For hearing of CMA No.1562/2018

3. For hearing of CMA No.126/2009

4. For hearing of main case

14.01.2019

Syed Jaffar Ali Shah advocate for the applicants.

Mr. Kalandar Bux Phulpoto advocate for respondent No.1.

Mr. Ahmed Ali Shahani Assistant Advocate General Sindh.

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This Revision Application impugns the judgment of the appellate Court passed on 05.01.2009 in Civil Appeal No.15/2001. The Province of Sindh through District Attorney, Khairpur also filed an appeal being aggrieved of the order of trial Court as Civil Appeal No.17/2001.

With the assistance of the learned counsel I have perused the order of the appellate Court. Only last two pages are relevant which were read over to me. None of the witnesses as cited by the plaintiff and defendant / applicant and respondent before the trial Court were considered and not even any document cited by these witnesses were remotely discussed. It is the arbitrary discretion that has been exercised to upset the judgment of the trial Court which decreed the suit. This judgment is absolutely silent as far as Order 41 Rule 31 CPC is concerned. This could have been ignored, had the appellate Court decided the appeal by giving sufficient reasons and answering the questions of the applicant and the respondent, however, the reasoning is absolutely silent. Mr. Kalandar Bux, when enquired about the reasoning of the appellate Court’s judgment, reluctantly concedes but submits that even the trial Court had travelled beyond its limits and the suit of the applicant was decreed though the relevant law at the time when the alleged land grant was made was not taken into consideration.

At the conclusion of their arguments, learned AAG also submits that the suit at the very outset is not maintainable since the Government of Sindh has not been sued through any of its functionary and is hit by Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 and no findings were given by any of the two courts below.

Since the applicant’s and the respondent’s counsel have suggested to remand the case to the trial Court, I deem it appropriate that learned AAG may take these preliminary objections before the trial Court, who may frame this additional issue before deciding the case on merit, yet again, if not framed earlier. The two judgments, by consent, are set aside and the case is remanded to the trial Court to decide it afresh after taking into consideration the evidence of the parties and the law available at the time of alleged land grant and it’s application thereafter.

Both the Revision Applications stand disposed of along with listed applications.

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J U D G E

N.M.