IN THE HIGH COURT OF SINDH

CIRCUIT COURT AT LARKANA

Civil Revision Application S-62 of 2011

Aijaz Ali & Another

vs.

Nazeer Ahmed & Others.

For the Applicant: Mr. Irshad Ali Chandio,

Advocate

For the Respondents Mr. Bashir Ahmed Dargahi,

No.1 to 3: Advocate

For the Respondents Mr. Ameer Ahmed Narejo,

Nos. 4 & 5: Advocate

Date of Hearing: 04-09-2018

Date of Announcement: 04-09-2018

JUDGMENT

Agha Faisal, J. Through this Civil Revision Application, the applicant has assailed the order dated 23.04.2011 delivered in Civil Appeal No. Nil of 2011 by the learned II-Additional District Judge Larkana (“Impugned Order”), wherein the rejection of plaint, vide order dated 10.03.2011 rendered in First Civil Suit No.41 of 2010 by the III-Senior Civil Judge Larkana (“Trial Court Order”), had been upheld.

2. Mr. Irshad Ali Chandio, learned counsel for the applicant, stated that the Trial Court Order unlawfully rejected the plaint without consideration of the applicable facts. It was submitted that the rejection of the pliant is unmerited in law and hence the Impugned Order suffers from the same infirmities as did the Trial Court Order, in view of the fact that it has upheld the same. Learned counsel states that it was just and proper that the Impugned Order and the Trial Court Order be set-aside and matter be remanded back to the trial court for determination in accordance with the law and on merit.

3. Mr. Bashir Ahmed Dargahi, learned counsel for the respondents No. 2 and 3, submitted that the plaint was rejected by the learned trial court as it was time barred. Learned counsel supported the content of the Trial Court Order and submitted that it was rightly upheld in the Impugned Order. Learned counsel further demonstrated from the record that the present revision application was filed after an unexplained delay of 102 days. Learned counsel adverted to the relevant provision of Section 115 C.P.C and submitted that a revision application was required to be filed within 90 days. It was further submitted by the learned counsel that there is no application on record to seek any condonation of the delay so occasioned. In addition thereto it was submitted by the learned counsel that in view of the concurrent findings of the two courts below, no case has been made out for interference by this court in its revisional jurisdiction.

4. Mr. Ameer Ahmed Narejo, learned State Counsel, appearing on behalf of the respondents No.4 and 5, supported the arguments of the learned counsel for the respondents No.2 and 3 and in addition thereto submitted that the Trial Court Order also reflects that the applicants had approached the court with unclean hands hence not entitled to relief. Learned State Counsel adverted to the factual perspective of the case and demonstrated that even otherwise no case for exercise of jurisdiction of this court has been made out by the applicant.

5. This Court has considered the arguments of the learned counsel and has also reviewed the record. The issue before this court is whether the interference in revisional jurisdiction is merited and in such regard it may be pertinent to reproduce the content of Section 115 C.P.C:

“115. Revision.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears—

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

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

the High Court may make such order in the case as it thinks fit.

Provided that, where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recoded, dispose of such application without calling of the record of the subordinate Court.

Provided that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide a copy of such decision within three days thereof, and the High Court shall dispose of such application within three months.

(2) The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under sub-section (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under sub-section (2) by the District Court.”

6. It is well settled law that concurrent findings of the two courts below supported all a preponderance of claim are not to be interfered in revisional jurisdiction, unless extra ordinary circumstances are demonstrated by the applicant. It is also trite law that a revisional court does not sit in reappraisal of the evidence and is thus distinguishable from court of appellate jurisdiction. Reliance in this regard upon the following reported judgments of the superior courts:

I. 1997 SCMR 1139

II. 2000 SCMR 431

III. 2004 SCMR 877

IV. 2002 CLC 1295

7. In order to consider the present facts and circumstances in view of the settled law, it may be prudent to reproduce the operative portion of the Trial Court Order:

“After hearing both sides so also perused entire material available on record shows that instant sit is hopelessly time barred and not only this but plaintiff also suppressed the real facts as they stated in para No.2 of the plaint that Mohammad Salleh was died issueless and on the contrary learned Advocate for defendant No.1 and 2 produced one P.S Copy from CT judgment in F.C. Sut No24 of 2002 in between both present parties Mst. Aisha and others Vs. Nazir Ahmed and others and said judgment was passed by learned Ist Senior Civil Judge, Larkana on 11.09.2006 and as per page No.3 said judgment shows that Mohammad Salleh had one daughter namely Khanzadi which shows that plaintiff not came in court with clean hands. It is also very necessary to mention here that at the point of limitation learned counsel for plaintiff stated that while they came into knowledge they came in court and there is no question of limitation but said judgment passed by learned Ist Senior Civil Judge, Larkana on 11.09.2006 clearly shows that both parties were under litigation since long hence it is very easy to say that instant suit is hopelessly time barred and I find no any substance in instant suit and I allow application under Order VII Rule 11 C.P.C filed by learned Advocate for defendants No.1 and 2 reject the plaint of plaintiff. There is no any order of costs.”

8. The Impugned Order upheld the Trial Court Order and the relevant passage thereof is reproduced as under:

“The abrupt changing stance of appellants show that appellants have suppressed the real facts and have not come with clean hands to this Court, therefore, they are not entitled for any relief in these circumstances I am of the considered view that this Appeal merits no consideration for proceedings. The order passed by learned 3^rd Senior Civil Judge, Larkana does not required any interference, therefore this appeal is dismissed.”

9. The learned counsel for the applicant has failed to identify any infirmity in the Impugned Order. Therefore, in the present facts and circumstances, it appears that no case has been made out to merit the exercise of revisional jurisdiction of this court under section 115 C.P.C, hence, this Civil Revision Application is hereby dismissed with no order as to costs.

Judge

Abdul Salam/P.A