ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Rev. Application No.S-51 of 2017
|
Date |
Order with signature of Judge |
1. For hearing of CMA No.282/2018
2. For katcha peshi
Date of
hearing: 09-04-2018
Date of
announcement: 09.04.2018
Mr.
Abdul Ghaffar Memon, Advocate for applicants
Mr.
Sardar Akbar F.Ujjan, Advocate for respondent No.1
Mr.
Shaharyar Imdad Awan, AAG
O R
D E R
Muhammad
Faisal Kamal Alam,J: Learned counsel for the applicants has
argued that the impugned decision passed by the learned appellate Court in
Civil Appeal No.113/2010 is not in accordance with law, inter alia, without following the mandatory provision of Order XLI Rule
31 of CPC, as admittedly no point for determination has been framed.
2. On the other hand,
learned counsel for the private respondent No.1 Mr. Sardar Akbar Ujjan has argued that
respondent No.2 has passed away during pendency of the revision and his legal
heirs should be arrayed as respondents. Learned counsel for the respondents has
fully supported the impugned decision of the learned Appellate Court, whereas
learned AAG has basically argued on the legal aspect of the case.
3. The crux of the
matter is that private respondents have filed a suit for declaration, mandatory
and perpetual injunction against the present applicants who were arrayed as defendants
in FC (First Class) Suit No.74/2007. Controversy involved is in respect of
ancestral land falling in survey No.88/1, 2 and 3 situated in Deh Shahmir Dero,
Taluka Kandiaro, District Naushahro Feroze. Parties have rival claims in
respect of above lands.
4. Perusal of record
shows that the learned Trial Court at Kandiaro has handed down a judgment dated
29.9.2010 after framing of issues and giving findings thereon. Obviously
parties also led the evidence.
5. Learned counsel
for the applicants has placed his reliance on a reported judgment of this
Court-2010 CLC 1931, in which number of judgments including those of Apex Court
on the issue of Order XLI Rule 31 of CPC and its effect has been discussed and
this Court in the above reported case was of the view that when a judgment of the
Trial Court is given after fulfilling the provisions of Order XX Rule 5 of the
CPC, then the same should not be interfered with or set aside by the appellate
Court, without adhering to the Provision of Order XLI Rule 31 of CPC; in this
context the last mentioned provision has been interpreted as mandatory.
6. The undisputed position
that emerges from examining of record of present civil revision is that though
the judgment of the trial Court has been handed down in the manner mentioned
herein above, the same has been set aside by the appellate Court and case was
remanded for deciding a fresh, but without complying Rule 31 of the
provision which has been mentioned exclusively for the appellate Court. In
my considered view this falls within the ambit of material irregularity existing
in the impugned decision dated 22.2.2017 of the Appellate Court; hence the
impugned decision is not a legal one. Resultantly, a case for the interference
in the revisional jurisdiction has been made out by the applicants’ side.
7. In view of the
above discussion, I set aside the decision of the Appellate Court. Consequently
this revision is allowed to the extent that the case is remanded to the Appellate
Court for deciding a fresh and preferably within six (06) weeks from today. As
far as the impleading of legal heirs of respondent No.2 is concerned, the same can
be done in the proceeding before the Appellate Court by the parties.
JUDGE
Suleman Khan/PA