IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

Civil Revision Appln.          :           Province of Sindh andothersvs.

No. S-10 of 2021.                             Fateh Muhammad.

 

For the Applicants               :           Mr. Abdul Hamid Bhurgri, Addl. A.G.

 

For the Respondent                        :           Mr. Imdad Ali Mashori, Advocate.                                                 

Date of hearing                    :           07.02.2022.

 

Date of announcement      :           07.02.2022.

 

ORDER

 

Agha Faisal, J.         Briefly stated, a suit was filed for recovery of contractual dues, which was decreed by the learned 1st Senior Civil Judge, Jacobabad. The judgment was upheld by the learned District Judge, Jacobabad vide judgment dated 15.12.2020.

 

2.            Learned Addl. A.G. appearing on behalf of the applicants submits that no cavil is being articulated with respect to merits of the matter, however, it was incumbent upon the learned trial Court to consider the issue of limitation, per section 3 of the Limitation Act, and reject the plaint, as the claim was time barred.

 

3.            Mr. Imdad Ali Mashori, Advocate representing respondent submits that there was no issue of limitation insofar the original claim was concerned and the matter has already been addressed by the learned trial Court inter alia in paragraph 9 of the judgment.

 

4.            Heard and perused.  The record reveals that an application under Order VII Rule 11 CPC was filed in the relevant suit, which was dismissed vide order dated 19.9.2018.It is appropriate to reproduce pertinent observations in the aforesaid order.

 

“On the other hand, the plaintiffs/ respondent has filed his objection through his counsel contending therein that SSP Jacobabad the defendant NO.5 admitted the case of plaintiff vide his written statement while other defendants have not yet filed their written statements; that the defendants have kept the plaintiff on false hopes and continued their official correspondence by issuing letter but now they have refused, therefore, the cause of action has accrued to the plaintiff in year 2016; therefore, instant application is prayed to be dismissed.

 

I have patiently heard both the learned counsel and have also carefully gone through the material available on record. From the perusal, it reveals that oral agreement between the parties are admitted. As per version of plaintiff that the payment has not yet been made by the defendants and they have kept him on false hopes vide corresponding letters. In such scenario, the cause of action has accrued to the plaintiff against the defendants for redressal of his grievance. Under these circumstances, the instant application merits no consideration and the same is hereby rejected, with no order as to costs.”

 

5.            There is no cavil to the fact that the aforementioned order attained finality as no challenge to the same has been demonstrated from the record. Even otherwise the suit has been determined in its entirety, including any issue of maintainability thereof. The written statement filed by the defendant No.5 is also on record and constitutes an acknowledgment in writing. If any was required for perpetuation of limitation. The issue has also been addressed in paragraph 9 of the judgment of trial Court, which reads as follows:

 

“The burden lies upon the defendants to prove this issue as it has arisen from their pleadings that the suit is not maintainable as it is barred by the law of limitation. The learned counsel for the defendants has argued that the plaintiff has filed instant suit with the delay of more than 13 years whereas the limitation for filing the suit for recovery of amount is given under article 62 of the Limitation act as within three years. In rebuttal, the learned counsel for plaintiff has contended that the suit is within time; that the plaintiff was kept on hopes till 2016, therefore, the limitation should be counted from 2016. A bare perusal of the facts reveal that the defendant himself has admitted in his cross examination that they continued their correspondence with the higher authorities for release of amount for the plaintiff till 2016 vide letters No. Acctts/- 5132/2016 dated 05.04.2016, and No. GB/-28066-78 of 2016 Larkana dated 08.09.2016. Thus, it shows willingness on their part instead of refusal to pay the amount with their each new correspondence giving effect to a recurring cause of action.”

 

6.            The learned appellate Court also dealt with the issuance of limitation and was pleased to reject the contention of the present applicants and maintained the judgment of the learned trial Court. In addition to the documentary corroboration the learned appellate Court also relied upon the evidence of the concerned defendant in the suit, wherein the continuing cause of action was expressly admitted.

 

7.            The present revision application is rested entirely on the premise that the question of the limitation was not properly appreciated by the courts below. It is not that the issue of limitation was disregarded; on the contrary the learned courts have dealt with the matter exhaustively and decided the same in the light of the judgments of the superior courts. The ambit of civil revisions is circumscribed by section 115 CPC and it is apparent that the same is not a subsequent forum of statutory appeal. Unless one or more of the ingredients of Section 115 CPC are apparent, a revision does not ordinarily lie[1]. The original judgment as well as judgment in appeal appear to have considered the record and the law and no infirmity in respect thereof has been identified to this Court.

 

8.            It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[2].

 

9.            This Court has considered the contentions of the applicant and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity.

 

10.         It is trite law[3] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.

 

11.         It is the considered view of this court that the applicants have remained unable to demonstrate any infirmity with the respective judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissed.

 

                                                                   JUDGE

                                                         

 


[1]1997 SCMR 1139; 2000 SCMR 431; 2002 CLC 1295; 2004 SCMR 877.

[2]2011 SCMR 758; 2007 SCMR 236; 2006 SCMR 5; 2006 SCMR 1304.

[3]Per Faqir Muhammad Khokhar J. in NaheedNusrat Hashmi vs. Secretary Education (Elementary) Punjab reported as PLD 2006 Supreme Court 1124; Naseer Ahmed Siddiqui vs. Aftab Alam reported as PLD 2013 Supreme Court 323.