IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Civil Revision Appln.No.S-09 of 2018
Applicant : Through Mr.Sohail-ur-Rehman Shaikh, Advocate
Respondents : Through Mr.Shafqat Rahim Rajput,
Advocate for private respondent,
Mr.Agha Athar Hussain Pathan,
A.A.G for official respondents
Date of hearing : 20.08.2018
Date of order : 20.08.2018
O R D E R
IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant civil revision application are that the private respondent filed a suit before learned trial Court seeking declaration to the following effect that;
“ The plaintiff is sole, true and lawful owner of the suit property viz. Bearing Flat C.S.No.B-413/3-A/1-A, first floor, measuring 33.3 Sq:Yards, situated at Jinnah Chowk, Sukkur, and the defendant No.1 is not owner of the suit property, but she is only Benamidar”.
2. By seeking above said declaration, the private respondent also sought for Perpetual and Mandatory Injunction, as is detailed in his plaint. The applicant by way of filing an application U/O 7 Rule 11 CPC, sought for rejection of the above said plaint. It was dismissed by learned trial Court on 27.01.2017, with direction to the private respondent to value the suit property properly within two weeks. It was not done by the private respondent. Consequently, on application under section 151 CPC filed by the applicant, the plaint so filed by the private respondent was rejected on 28.03.2017, by learned trial Court. Such rejection of the plaint, on appeal preferred by the private respondent was reversed by the learned Appellate Court on 12.10.2017, with cost of Rs.10,000/- payable to the applicant.
3. On remand of the matter, the private respondent valued the suit property properly by paying requisite Court Fee Stamp and cost so imposed upon him by learned Appellate Court.
4. The applicant being aggrieved of order of the learned Appellate Court reversing the order of learned trial Court, has impugned the same before this Court by way of instant civil revision application.
5. It is contended by the learned counsel for the applicant that the plaint of the private respondent was rightly rejected by learned trial Court on account of his failure to value the suit property properly and to pay the requisite Court fee, such order of rejection of the plaint was reversed by the learned Appellate Court without lawful justification ignoring the fact that no Court Fee Stamp was paid on appeal by the private respondent. By contending so, he sought for restoration of the order of learned trial Court, whereby plaint of private respondent was rejected. In support of his contention he relied upon cases of Federation of Pakistan through Secretary Ministry of Defence, Government of Pakistan and others vs. Messrs Rehan Construction Company (2009 SCMR-758), 2). Muhammad Hafiz Khan vs. Ali Asghar alias Asghar Ali and others (PLD 2002 Azad J&K-9) and 3). Mst.Saddiqunnisa vs. Khan Sahib Agha Muhammad Sultan Mirza and others (PLD 1972 Karachi-103).
6. It is contended by learned counsel for the private respondent that on remand of the matter, the private respondent has not only valued the suit property properly but has paid the requisite court fee stamp and cost so imposed upon him by learned Appellate Court and the issues in the suit have been framed, the evidence has been led and the applicant has been found reluctant to make cross examination to the private respondent and his witnesses, the valuable rights of the parties are involved in the litigation, which according to him could only be resolved on merits and not on the basis of technicalities. By contending so, he sought for dismissal of the instant civil revision application.
7. Learned A.A.G for the official respondents was fair enough to state that no public interest is involved in the litigation.
8. I have considered the above arguments and perused the record.
9. Admittedly, the valuable rights of the parties are involved in the instant litigation, which apparently could only be resolved on merit, and not on technicalities. On remand of the matter, as per learned counsel for the private respondent, not only the suit property has been valued properly but requisite Court Fee Stamp with cost imposed upon the private respondent by the learned Appellate Court has been paid. In that situation, it would be unjustified to order disposal of the suit by resorting to technicalities. If such exercise is undertaken, then it would amount to denial of right of fair trial which is guaranteed by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
10. The case law which is relied upon by learned counsel for the applicant is on distinguishable facts and circumstances. In case of Federation of Pakistan (supra), beside issue of Court fee, the first appeal was found to be time barred. It is why the interference with the impugned order was declined by the Hon’ble Court. In the instant matter, no issue of limitation is involved and the suit property was valued by the private respondent after remand of the matter. In case of Muhammad Hafiz Khan (supra), the plaintiff was ordered to deposit one fifth of ostensible price of the land which he failed to deposit within time, consequently his plaint was rejected. In the instant matter, the direction to the private respondent was only to the extent that he may value the suit property properly. No issue of deposit of ostensible price of the suit property was involved. In case of Mst.Sadiqunnisa (supra), the issue of contract and limitation in filing appeal was involved, in that context it was concluded by the Hon’ble Court that the plaint or memo of the appeal cannot be properly presented so long as proper Court fee is not paid and limitation in filing appeal in no case could be condoned without any lawful justification. In the instant matter, no issue of contract or limitation is involved.
11. In view of the facts and reasons discussed above, there appears no justification to make interference with the impugned order of learned Appellate Court, whereby the order passed by learned trial Court was set-aside.
12. Above are reasons of short order dated 20.08.2018, whereby the instant civil revision application was dismissed, with no order as to cost.
--