IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

 

 

Civil Revision S-45 of 2017

 

Abdul Sattar Abro and Others

Versus

Province of Sindh and Others

 

For the Applicants:                Mr. Faiz Muhammad Larik, Advocate.

 

Date of Hearing:                    04.09.2018

 

Date of Announcement:       04.09.2018

 

 

O R D E R

 

Agha Faisal, J.     Through this Civil Revision Application, the applicants have challenged the order of the learned District Judge, Shikarpur dated 19.08.2016 in Civil Appeal No. 30 of 2017 (“Impugned Order”), wherein the Court had upheld the order dated 11.05.2017 passed by the learned 2nd Senior Civil Judge, Larkana in F.C Suit No.140 of 2016 (“Trial Court Order”), whereby an application seeking rejection of the plaint in the suit before the learned Senior Civil Judge, Larkana had been allowed.

 

2.            Mr. Faiz Muhammad Larik, learned counsel for the petitioner, submitted that the Trial Court Order was erroneous in law and the same infirmity was borne out of the Impugned Order, since it has upheld the Trial Court Order. It was further submitted that the learned Courts were unable to appreciate the facts in their proper perspective and hence the orders rendered were not in consonance with the law. In conclusion it was prayed that the Impugned Order and the trial Court’s order may be set aside.

 

3.            This Court has heard arguments of the learned counsel and has also considered the record available before the Court. It is apparent from the Trial Court Order that the suit was determined to inter alia have been hit by the principles of res judicata, as enunciated in Section 11 read with Order II Rule 2, CPC. It may be pertinent to reproduce the operative part of the Trial Court Order:

“…. The plaintiffs have concealed such facts about F.C. Suit No.45/2004 between the parties on the same subject matter which was heard and decided in the competent Court of law and attained its finality because the plaintiff did not file any appeal against the judgment and decree passed by the Honourable 1st Additional District Judge Shikarpur. Plaintiff did not either challenge the order in 12 (2) CPC application of Honourable 1st Additional District Judge Shikarpur. Therefore, the suit of the plaintiffs hit by principle of Res-judicata under section 11 of CPC. And above all plaintiff have also concealed the real facts about the previous litigation in this suit and he has not come in this Court with clean hands to seek relief. Therefore, the plaintiffs have no cause of action to file the instant suit.

 

          For what have been stated above, the plaint of plaintiff is rejected under order VII Rule 11, CPC for want of jurisdiction. There is no order as to cost”.

 

4.             The Trial Court Order was assailed before the appellate Court and vide the Impugned Order the Trial Court Order was maintained and upheld. The operative constituent of the Impugned Order is reproduced herein below to illustrate the content thereof:

 

“Perusal of the R&Ps and impugned order of learned trial court reflect that respondent/defendant No.8 and other legal heirs of Rajho had filed F.C Sut No.45/2004 before the learned 2nd Senior Civil Judge, Shikarpur in which they had stated that after promulgation of Sindh Goth Abad Scheme Act 1987, the Government  had allotted the suit land to them and issued Sanads in their favour which suit was dismissed, hence the respondent/defendant No.8 and others had filed appeal before the Honourable District Judge, Shikarpur where their appeal was allowed vide judgment dated 30.09.2009 and set aside the judgment of the learned 2nd Senior Civil Judge, Shikarpur. Thereafter one Muhammad Ismail filed application u/s 12 (2) CPC which was too dismissed by Honourable 1st Additional Sessions Judge, Shikarpur vide order dated 29.10.2015. The appellants had concealed such facts about F.C suit No.45/2004 between the parties on the same subject matter which was heard and decided by the competent court of law and such decision has attained its finality because the appellants did not file any appeal against the judgment and decree passed by the learned 1st Additional Sessions Judge, Shikarpur. Appellants did not either challenge the order dated 29.10.2015 passed in 12 (2) application of learned 1st Additional Sessions Judge, Shikarpur, therefore, the suit of appellants was hit by principle of res-judicata under section 11 of Civil Procedure Code.

 

Considering the facts and circumstances discussed above, I am of the view that learned trial court has rightly passed the impugned order and rightly rejected the plaint of appellants as the suit of appellants was hit by principle of res-judicata, therefore, same does not require any interference. Accordingly instant appeal is devoid of merits, which is hereby dismissed in limine. Office is directed to send the copy of this order along with R&Ps of the lower court to the learned 2nd Senior Civil Judge, Shikarpur for information”

 

5.            The law with regard to Order VII Rule 11 CPC has been comprehensively encapsulated in the judgment of Honourable Supreme Court of Pakistan in the case of Haji Abdul Karim & Others vs. Messrs Florida Builders (Private) Limited reported as PLD 2012 Supreme Court 247. However, the primary issue before this Court is to determine whether in the present facts and circumstances invocation of the revisional jurisdiction of this Court is merited.

 

6.            It is well settled law that concurrent findings of the Courts below coupled with the preponderance of claim may not ordinarily be interfered in revisional jurisdiction. It is further within the contemplation of this Court that appraisal of evidence is discouraged in the exercise of revisional jurisdiction of this Court. Reliance in regard hereof is placed upon the following pronouncements of the superior courts:

 

(i)           1997 SCMR 1139

(ii)          2000 SCMR 431

(iii)        2004 SCMR 877

(iv)        2002 CLC 1295

 

7.            During the course of the arguments it could not be demonstrated by the learned counsel that Trial Court Order was otherwise than in accordance with the law. The learned counsel was further unable to identify any infirmity in the Impugned Order, precipitating the exercise of revisional jurisdiction of this Court.

 

8.            In view of the foregoing, it is the considered opinion of this Court that no case has been made out by the applicant to merit the interference of this court in its revisional jurisdiction hence the revision application is hereby dismissed with no order as to cost.

 

Judge

 

 

Abid H. Qazi/**