IN THE HIGH COURT OF SINDH
BENCH AT SUKKUR
Civil Rev. Application No.S-30
of 2017
|
Date |
Order with signature of Judge |
For
hearing of main case
Present: Mr. Justice Nazar Akbar
Syed
Bachal vs. Province of Sindh and others
Mr. Zafar EidanMangi, Advocate for
applicant
Mr. Agha Ather Hussain Pathan, AAG.
Date of
hearing: 02.10.2019
Date of decision: 02.10.2019
_*_*_*_*_*_*_*_*_*_*_
J
U D G M E N T
NAZAR AKBAR
J:-The
applicant/plaintiff has filed instant Civil Revision Application against the
order dated 23.12.2016 passed by learned District Judge, Gambat in Civil Appeal
No.14/2015 whereby his application under Order XLI Rule 19 C.P.C for
restoration of appeal was dismissed.
2. The brief facts relevant for disposal of
instant Civil Revision Application are that applicant has filed a suit bearing
FC Suit No.08/2015 for declaration, cancellation of sale deed No.783,
possession, mesne profit and permanent injunction before the Senior Civil
Judge, Gambat. Defendant No.7 filed an application under Order VII Rule 11
C.P.C and after hearing the parties, learned Senior Civil Judge, Gambat
rejected the plaint by order dated 30.06.2015. Against the said order,
the applicant/plaintiff filed Civil Appeal No.14/2015 and on 05.01.2016,
learned Additional District Judge, Gambat dismissed the said appeal for
non-prosecution. Applicant/plaintiff moved an application under Order XLI
Rule 19 C.P.C for restoration of appeal but the learned Additional District
Judge, Gambat by order dated 23.12.2016 also dismissed the said
application, hence the applicant/plaintiff has filed this Civil Revision
Application against the said orders.
3. Learned counsel for the applicant was
in fact facing the question of limitation not only in the trial Court where he
has filed suit on 7.2.2015 for cancellation of a registered document
dated 18.9.1979 and also in appeal since the appeal has been preferred
on 20.8.2015against the order dated 30.6.2015 whereby the suit
was dismissed under Order VII Rule 11 CPC. The appeal was also time barred as
observed by the learned Additional Sessions Judge, Gambat in the impugned
order.
4. Learned counsel for the applicant has not
advanced any argument on the question of limitation. He has relied only on the
case of Muhammad Shafi and 2 others vs. Haji Ibrahim and 8 others reported in 1983
CLC 2197 and even an earlier case of Muhammad Nazir Chaudhary vs. Punjab
Province etc. reported in PLD 1978 Lahore 1350 on the question of
restoration of an appeal dismissed in default. He has also contended that the
law favours decision of the lis between the parties on merit.
5. I have also perused the record and I am
not persuaded by the contentions of the learned counsel for the applicant since
there are concurrent findings of dismissal of the suit and appeal bothon the
question of limitation which has been ignored by him. The record shows that the
applicant has filed suit for cancellation of registered documents after 35
years of its registration. As stated earlier the document was registered on 18.9.1979
and the suit was filed in February, 2015 and no explanation was given
for the failure to contest that registration of document. Even in the plaint he
admits that the Respondents are in possession, however, he tried to allege that
he has put the Respondents in possession 10/20 years ago as a caretaker. Be
that as it may, learned trial Court has elaborately discussed various decisions
of Hon'ble Supreme Court on the question of limitation and it has been
consensus of the Hon'ble Supreme Court that the question of limitation is to be
raised by the Court itself even if such plea has not been raised by the
Defendants before the trial Court. The conduct of the counsel for the applicant
even before the trial Court was such that after filing objection to the
application under Order VII Rule 11 CPC he did not proceed with the case as has
been observed by the learned trial Court in para-6 of the impugned order that neither
the plaintiff nor his counsel Mr. Amir Imtiaz Solangi, advocate appeared though
on 16.06.2015 arguments of learned counsel for Defendants No.7 and 8 was heard
and matter was adjourned for order on 30.06.2015 and plaintiff side was directed
to argue in the meanwhile but plaintiff side failed to argue and remained
absent today without intimation. Such conduct of the applicant/ plaintiff
was also in fact an admission of the fact that the counsel has no answer to the
question of limitation for challenging a document registered 35 years before.
However, he preferred an appeal against the order dated 30.6.2015. Even
the appeal was time barred and obviously learned counsel for the appellant had
no lawful justification to get the favourable decision on a time barred appeal,
therefore, he kept on delaying the matter. The impugned order shows that on 05.01.2016
after almost four months appeal was dismissed for non-prosecution and
restoration application under Order XLI Rule 19 CPC was filed on 14.01.2016.
Again from 14.01.2016 to the date of dismissal of said application on 23.12.2016
the conduct of the learned counsel was to keep the matter pending. However, irrespective
of the fact that what was the conduct of the counsel for the applicant, the
record shows that he had failed to advance a plausible explanation for his
absence on the date of dismissal of appeal for non-prosecution. The only ground
advanced by the learned counsel before the appellate Court for restoration of
appeal was that on 05.01.2019 he was busy before the Court of Civil
Judge and Judicial Magistrate, SobhoDero, therefore, he could not appear before
the appellate Court. It was not a satisfactory and plausible explanation of
absence since it was not supported by record of Court of Judicial Magistrate.
Not only it was not plausible but it was also found contrary to the record of
Civil Judge and Judicial Magistrate, SobhoDero as it was discussed by the
learned appellate Court in the impugned order that:-
The copy of case diary produced by the attorney of
the appellant in Criminal Case No.267 of 2015 State v. Raheem Bux & others,
u/s 506/2 PPC dated 05.01.2016 shows that the name of Mr. Ameer Imtiaz Hussain
Solangi not appears in case diary that for which accused he appeared there. He
also was duty bound to appear before this Court on each and every date and if
he was unable to appear before this Court, he must sent any adjournment
application or intimation to this Court but he being a lawyer did not care.
The
above observation of learned appellate Court clearly indicates that the excuse
advanced by the learned counsel for is absence was rightly refused to accept by
the Court while dismissing the application for restoration of appeal.
6. In view of the above record adversely
reflecting on the conduct of the applicant,I do not think that the litigant who
is in habit of not contesting the matter and who has filed a hopelessly time
barred case can be given one more chance in the name of deciding the case on
merit. In fact dismissal of the suit barred by limitation was dismissal on
merit. The law of limitation creates statutory right in favour of the party who
has been dragged in litigation after limitation and in this case the
Respondents have statutory protection of limitation against the cancellation of
registered lease deed and such right cannot be taken away by the Courts.
7. In view of the above, instant Revision
Application was dismissed by a short order dated 02.10.2019 and above
are the reasons for the same.
JUDGE
Sukkur