IN THE HIGH COURT OF SINDH

CIRCUIT COURT AT LARKANA

 

Civil Revision Application S-43 of 2018

 

Nadir Ali Magsi & Others

vs.

Ghulam Hussain & Others.

 

For the Applicant:                  Mr. Irfan Badar Abbasi

                                                Advocate

 

Date of Hearing:                    03-09-2018

 

Date of Announcement:       03-09-2018

 

ORDER

 

Agha Faisal, J.     Through this Civil Revision Application, the judgment of the learned Additional District Judge, Shahdadkot dated 30.03.2018 rendered in Civil Appeal 07 of 2017 (“Impugned Judgment”) has been assailed, wherein the judgment of the trial court in First Civil Suit 48 of 2015 dated 03.03.2017 (“Trial Court Judgment”) had been upheld.

2.       Mr. Irfan Badar Abbasi, learned counsel for the applicant stated that the Trial Court Judgment suffers from infirmities as the learned Senior Civil Judge failed to consider that no written statement has been filed by some of the defendants and that the learned Senior Civil Judge failed to appreciate that there were other fori for proper adjudication available to the defendants there before. Per learned counsel the Trial Court Judgment was untenable in law, however, the Impugned Judgment failed to consider the same and suffers from the same anomalies as the Trial Court Judgment.

3.       Mr. Jummo Magsi, the respondent No. 4 herein, appeared in person and stated that the case under consideration is a corollary of the judgment of the Honourable Supreme Court of Pakistan, dated 09.07.2015, delivered in Civil Appeal No. 191 of 2016 and drew the Court’s attention towards the operative part of the afore stated judgment.

“7.      We have considered the submissions made before us and perused the case record, which reveals that indeed after the institution of the suit on 24.02.1999, some adjournments were allowed to the appellants to enable them to file their written statement, but thereafter the matter was proceeded against them ex parte and was fixed for recording of ex parte evidence of the respondents No.1 & 2. In a situation when the appellants were proceeded ex parte in terms of the order dated 05.05.1999, the proper course available with the trial |Court was to have called upon the respondents No.1 and 2 to submit their affidavit, lead ex parte evidence and file the relevant documents on which they intend to rely instead of adopting the course of decreeing the suit under Order VIII, Rule-10, C.P.C, which in such circumstances, was uncalled for. There is no denial of the fact that in the litigation in hand, valuable rights of the parties in respect of agricultural land are involved. The appellants were served with the summons of the suit in the month of March and even before the expiry of the 90 days period provided under law, they were proceeded ex parte, which proceedings thereafter ended in the Impugned Judgment. In our opinion, such course followed by the trial Court was against the principle of natural justice, which mandates a proper opportunity of hearing to every party to the proceedings.

8.       In any case, a perusal of the case record reveals that the order requiring the appellants to submit their written statement was made in the ordinary course of the proceedings and it does not appear to be an order “requiring” the appellants to file a written statement as contemplated by Order VIII, R-10, C.P.C. For the penal provision of Order VIII, R-10, C.P.C, to be attracted to a particular case, the Curt must have required the party to file the written statement, and the word “required” in this context is different from the filling of a written statement as of right or by leave of the Court. Furthermore, a perusal of the order sheet reveals that the order preceding the order dated 5.5.1999, whereby the appellants were declared ex parte, did not contain any warning or admonition to the appellants that their right to file a written statement would be struck off or that any other penal consequences would result in case they failed to file the written statement on the next date. In these circumstances, we are convinced that the trial court was not justified in decreeing the suit of Respondents No.1 and 2, under Order VIII, Rule-10, C.P.C. For this, we are fortified in our view by the ratio of the judgments reported as Col. (R) Ayub Ali Rana v. Dr. Carlites S. Pune and another, PLD 2002 SC 630, Muhammad Anwar Khan and others v. Chaudhry Riaz Ahmad, PLD 2002 SC 491, The Secretary Board of Revenue, Punjab and another v. Khalid Ahmad Khan, 1991 SCMR 2527, Sardar Sakhawatuddin and others v. Muhammad Iqbal and others, 1987 SCMR 1365.

9.       This being the position, and in order to foster the cause of justice, this appeal is allowed, the impugned judgments passed by the revisional Court as well as two Courts below, are set aside, and the case is remanded to the trial Court of learned 3rd Senior Civil Judge, Larkana for further proceedings in the matter in accordance with law. However, such grant of relief to the appellants is subject to payment of costs of Rs.10,000/- to the respondents No.1 and 2 within a period of two months or its deposit in Court.

4.       It was further submitted by the respondent No. 4 that the Trial Court Judgment and the Impugned Judgment are in due consonance with the law and hence no interference is merited therewith in the exercise of revisional jurisdiction of this Court.

5.       This Court has considered the submissions as well as the record available before the Court. It may be prudent to initiate the deliberation by adverting to the relevant segment of the Trial Court Judgment:

“Above facts and circumstances show that suit land was granted to the defendant Nos.01 to 03 in year 1996 by the Colonization Officer Sukkur Barrage Hyderabad/ Barrage Department, who also issued T.O Forms in favour of the defendant Nos. 01 to 03 and on their application filed through their brother/attorney the defendant No. 04, the entries kept in favour of the plaintiffs and others were found kept after committing forgery in the revenue record, hence the defendant No.07 under his order Ex.70/B, suspended entries kept fraudulently in favour of the plaintiffs, while alleged grant of land in favour of the private defendants was prior to alleged registered sale deeds bearing Juriyan No.153 and 154 dated 24.03.1997 claimed by the plaintiffs were executed in their favour, but the plaintiffs have neither challenged the grant of land in favour of the defendant Nos.01 to 03 and their T.O Forms nor the plaintiffs made Colonization Officer Sukkur Barrage Hyderabad/Mukhtiarkar Barrage Department as party in the suit, nor the plaintiffs have challenged the order Ex.70/B of defendant No07, before his higher officials or before any court of law, while they have also failed to prove their ownership and possession in respect of suit land, hence the respected case laws cited by their learned counsel do not support their case.

          What has been discussed above, I am of the opinion that no cause of action arisen to the plaintiffs to file the suit, same is filed with unclean hands, their suit is not maintainable in accordance with law and they are not entitled for the relief claimed, therefore, for the aforesaid reasons, suit of the plaintiffs is hereby dismissed with no order as to costs.

6.       The Trial Court Judgment was considered in the Impugned Judgment and it may also be pertinent to reproduce the relevant part of the Impugned Judgment herein below:

“It is well settled that the Court has to apply its judicial mind on the merits of the case before pronouncing verdict. In cases which are proceeded ex-parte, it is duty of Court to go through the averments of plaint, evidence led in support thereof and material placed on record. it is not necessary that the verdict should be returned in favour of plaintiffs, in all the cases which are proceeded ex-party or where the defendants have failed to contradict the plaintiff. In case reported as NLR 1994 Civil 80, it has been observed as follows:-

“Unfortunately the sub-ordinate Courts while proceeding ex-parte against the defendants and in granting ex-parte decree in plaintiff’s favour do not apply their mind to the merits of the case. it has been time and again emphasized by the superior Courts that even if the Court is to proceed ex-parte, it is its duty to go through the allegations made in the plaint and in support thereof the material placed on file and give its decision thereon.”

          In the circumstances, I am of the humble view that the plaintiffs/appellants cannot succeed merely on basis of technicalities by taking advantage of Order VII Rule 5, Order VII Rule 3 of C.P.C are Article 129(g) of Qanoon-e-Shahadat order-X of 1984. The learned counsel for the plaintiffs/appellants has not been able to point out any particular portion of the pleadings of the parties or the issues which could suggest that the finding of the trial Court were improper and resulted in miscarriage of justice.

          For the foregoing reasons the appeal merits no consideration. Hence, the same is dismissed with no orders as to cost.”

7.       In the presence of two concurrent findings of the courts in such regard it is pertinent to consider the relevant law which could merit the exercise of jurisdiction by this Court. The said law is Section 115 of the Civil Procedure Code and relevant portion thereof, as reproduced herein below, states that interference was only merited in the circumstances as stated below:

“(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity…”

 

8.       It is well settled law that in the presence of concurrent findings, and a preponderance of the claim supported by evidence, a revisional court may not interfere, even if another view was possible. It is also trite law that reappraisal of evidence is discouraged in revisional jurisdiction. Reliance is placed in such regard upon the pronouncements of the superior courts reported as 1997 SCMR 1139, 2000 SCMR 431, 2002 CLC 1295 and 2004 SCMR 877.

9.       It is observed the matter preferred before this Court is yet another milestone in the long standing litigation between the parties, which went all the way to the Honourable Supreme Court of Pakistan. The Trial Court Judgment was rendered in proceedings which were adjudicated pursuant to the judgment of the Honourable Supreme Court referred to above. The learned Senior Civil Judge has considered each aspect of the case in detail and his findings thereupon have also been maintained in appeal vide the Impugned Judgment and the learned counsel for the applicant has failed to point out any infirmity in the Impugned Judgment which could precipitate the interference of this Court in the revisional jurisdictional.

10.     In view of the foregoing, it is the considered opinion of this Court that no case for interference is made out by the applicant in the present facts and circumstances, hence, the present Civil Revision Application is hereby dismissed with no order as to costs.

 

                                                                                                      Judge

                                                                          

Abdul Salam/P.A