ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Revision Application No.S-11/2010

Date	Order with signature of Judge

Hearings of case (priority) ;

1. For hearing of main case

2. For hearing of CMA No.31/2010

04.10.2019

M/S Muhammad Akil&Nazir Ahmed Junejo, Advocates for applicant

Mr. Mehboob Ali Wassan, AAG

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This Revision has been directed against the order dated 10.11.2009, whereby the learned IInd Additional District Judge, Khairpur has allowed the Civil Appeal No.95/2009 and remanded the case to the trial Court without any cogent reasons for even remand of the case. Irrespective of facts that remand order is not supposed to be final. The applicant has raised question of limitation in its file as well as argument that appeal was hopelessly time barred. This revision was presented on 18.10.2010 and even in this revision the counsel for the contesting party i.e. respondent No.6 is absent and counsel for the other respondents learned AAG is present but however, he have only supports the case and contended that respondent No.6 has their own law officer.Mr. KalandarBuxPhulpoto has informed the Court that earlier he has been appearing in case on behalf of the respondent No.6 but for the last several years he is not appearing on behalf of respondent No.6. No counter affidavit to the factual controversy regarding limitation has been filed during the last ten years by the respondents.Be that as it may as this being illegal proposition, it was not required and the counsel for the State is present but he isalso unable to explain thecause of delay in filing appeal by more than 120 days.Learned counsel for the applicant has taken me to the record of case file. The case diaries of the trial Court in the Suit No.119/2008, which shows that despite having filed written statement the respondents have nevercontested the claim of plaintiff as almost on every date of hearing either the advocate for respondent was absent or he has sent an adjournment application through his Munshi.The side of the evidence was closed on 23.5.2009 but they never bothered to even file a proper application to re-open their side and ultimately the suit was decreed on 24.06.2009 and the decree was prepared on 29.06.2009. It may be mentioned here that infirmities pointed out by the learned counsel for the applicant that from day one till the date of disposal, the counsel for the respondent was appearing but sending applications of adjournment and, therefore, the contention of the learned counsel for the respondent before the appellate Court that the judgment has been passed behind the back of respondent was factuallyincorrect. He has further contended that even the application for certified copies of the judgment and decree have been filed after delay of more than nineteen days even after the limitation of filing the appeal of the trial Court. He has further contended that no explanation of delay has been mentioned in the application under Section 5 of the Limitation Actwhen the appeal was filed and, therefore, the very order of setting aside appellate order whereby trial Court order was illegal and unlawful.

As usual as the counsel for respondent No.6 is absent from this Court even today though there are notice appearing in this Court also. However, the learned counsel for the State Mr. Mehboob Ali Wassan, AAG has tried to pursued this Court that in the name of interest of justice, this case may be remanded. He has also insisted that case be adjourned by the opening day of coming week i.e. 07.10.2019.However, after ten years when he himself despite being lawyer of this Court is not in a position to argue the case on the ground that this case belongs to revenue department when there is no justification on behalf of delinquent respondent No.6 who has never shown any interest in this case from 2008 till date. Besides the above, the learned counsel for the applicant has relied on the following case law from the jurisdiction of Supreme Court of Pakistan.

1. Commissioner of Income Tax, Zone B, Peshawar vs. Zabeel Palace Hotel, Peshawar (2011 SCMR 361)

2. Federation of Pakistan through Secretary, Ministry of National Food Security and Research, Islamabad vs. Agritched Limited and others (PLD 2016 Supreme Court 676)

In view of the above facts and circumstances, this revision is allowed and the order passed by the appellate Court is set aside and that the decree passed by the trial Court.

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J U D G E

G.M/Steno