IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

 

 

Civil Rev. Appln. S-98 of 2021             Kamal Khan Hajwani Bugti &     Another vs. Sindh & Others.

                    

For the Applicant                       :         Mr. Ghulam Dastagir A.   Shahani, Advocate

                                                         

Date of hearing                         :         14.02.2022

 

Date of announcement              :         14.02.2022

 

ORDER

 

Agha Faisal, J.         (1) Deferred (2) Granted subject to all just exceptions (3&4) Vide order dated 08.06.2021, learned Senior Civil Judge, Kandhkot had been pleased to reject the plaint in the appellant's suit under Order VII Rule 11 C.P.C. The operative part of the order is reproduced herein below:

"Heard learned counsel for plaintiff and defendants and perused the record as well as copy of plaint of F.C Suit No. 84/2015 submitted by learned counsel for defendants No. 10 to 21. Perusal of record reveals that plaintiff is claiming that he is owner of suit property, vide entry No.11 dated 19.05.2003 of Form-VII Deh Hajano, Defendants are greedy persons who  with the help of official defendants managed false fabricated entry No.08 dated 15.05.2019 in record of rights with respect of suit property in their favor. Such grievance of the plaintiff is seems that plaintiff are aggrieved by entry of record of rights which is managed by of Revenue officials. However, it is settled law under section 172 of West Pakistan Land Revenue Act, 1967 that any person aggrieved by any entry maintained by Revenue official, he may approach to concern Revenue Officer for correction of it, but jurisdiction of civil court to entertain such matter of entry of record of right is barred. Section 172 of Land Revenue Act is reproduced as under:-

 “172. Exclusion of Jurisdiction of Civil Courts in mattes within the jurisdiction of Revenue Officers (1) as otherwise, provided by this Act, no civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of or take cognizance of this mater in which Government, the Board of Revenue or any Revenue Officer exercises any powers vested in it or him by or under this Act.

(2) Without prejudice to the generality of the provisions of subsection (1) a Civil court shall not exercise jurisdiction over any of the following maters namely:…

(vi) the correction of any entry in a Record of Rights, periodical record or register of mutations. 

                Further perusal of plaint shows that plaintiff has not approached to concern Revenue officials up to final authority for his grievance before filling present suit. However, under section 11 of Sindh Land Revenue Jurisdiction Act no suit shall be filed against official defendants with regard to his jurisdiction until and unless he prove that he has approached final authority of said Revenue officials for his grievance Section 11 of Sindh Land Revenue Jurisdiction Act 1967 is reproduced as under;-

                   “No civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.

                   In view of above facts jurisdiction of this Civil Court to entertain present suit is bared under section 172 of Land Revenue Act and Section 11 of Sindh Land Revenue Jurisdiction Act, therefore, plaint is hereby rejected and suit is hereby dismissed, however, in particular circumstances no order of cost is passed.  "

 

2.            The applicant preferred an appeal and the same was dismissed as being time barred as there was unjustified delay of two years and nine months in respect of filing of the prescribed court fee. It is considered appropriate to reproduce the operative constituent of the judgment herein below:

"12/-            Keeping in view the arguments advanced by the parties. Perusal of record it transpires that the plaintiffs/ appellants filed suit for Declaration, Cancellation of bogus entry No.8 dated 15.05.2019/Documents/Khata and Permanent Injunction, before the court of learned Senior Civil Judge Kandhkot, wherein defendants moved application under order VII Rule 11 CPC and after hearing the parties, the plaint of the plaintiffs/appellants was rejected. Admittedly, plaintiffs/appellants had filed F.C. Suit No.84 of 2015,   in respect of the same suit property, which was dismissed U/S VII Rule 11 CPC by learned trial court vide order dated 03.09.2015, said order was not assailed through civil appeal before the appellate Court. The appellants in their objection on application U/O VII Rule 11 CPC has admitted the fact of filing of F.C.Suit No.84 of 2015, before the learned trial Court. 

13/-             Apart from above, I have to decide the question of maintainability of the instant appeal. The perusal of R and Ps of the trial court reflects that the appellant has not paid the required court fee at the time of filing of instant appeal. It is pertinent to mention here that on the very day of filing of instant appeal, learned counsel for appellants submitted undertaking statement for submission of court fee stamps, but after admission of the appeal neither the court fee was deposited nor any application as required by law for grant of time for depositing of required court fees stamp has been moved. Record also reveals that after that no any application U/S 149 CPC has been moved by the appellant for condonation of delay and grant of time.

14/-                   There are some reported case, where in the Honourable Apex Courts allowed the petitioner for the payment of deficient Court Fees and wherein the parties paid Court fees in petitions/appeals after getting order from the court by filling application u/s 149 CPC. But in instant civil appeal the Court fees was not deposited nor Application u/s 149 CPC for grant of time or condonation of delay has been moved. None affixing of court fee stamps within time with memo of appeal no application for condonation is moved, which proved that appeal is time barred. In this connection I am fortified with the case law re: Qazi Muhammad Ilyas and 7 others Versus Qazi Muhammad Raees and 3 others reported in 2014 CLC 160 (Sindh), the Honourable High Court has held as under: -

“Ss. 96, 107, 115 & 149… Filing of first appeal without court-fee---Making up deficiency of Court-fee---Scope---Payment of court-fee along with application under S.149, CPC made at time of arguments---Order of Appellate Court allowing appellant to pay Court-fee---Validity---Time for payment of court-fee could be extended under S.149,CPC before expiry of period of limitation prescribed for filing an appeal, but not thereafter---Delay in filing appeal or payment of court-fee could not be condoned under S.149, CPC after expiry of prescribed period of limitation---Payment of court fees beyond period of limitation prescribed for filing an appeal would render appeal itself as time barred---Appellate Court had allowed appellant to pay court-fee when his appeal was barred by limitation---High Court accepted revision petition and set aside impugned order in circumstances.

15/-          In another un-reported order dated 11.08.2014 passed in Re Civil Revision No:52 of 2014 Market Committee Shikarpur & ors VS Agha Shafi Muhammad Khan & other, where in Honourable High Court of Sindh, Circuit Court Larkana has held as under:-

ORDER 11.08.2014

           Respondents have filed suit for restoration of possession and compensation against the appellants. The suit was decreed in terms of judgment dated 19.05.2011 and decree was passed on 25.05.2011. Aggrieved with judgment and decree the applicant preferred an appeal bearing Civil Appeal NO:14 of 2011. However, the record reflects no court fee at the time of filling of appeal was affixed. The judgment of the 2nd Additional District Judge Shikarpur passed in Civil appeal NO:14 of 2011 reflect that the court fee before the appellate court was deposited on 15.03.2014 without any application under section 149 CPC. Thus no ground was established before the appellate court forum for such delay in affixing court fees. The record also shows that he has affixed court fee but that was subject to all just exceptions. The court fees appears to have been filed after the delay of 02 years and 09 months and hence the appellate court held that since the prescribed period for filling of appeal was 30 days therefore, appeal was hopelessly barred by time.

                   Learned counsel for the applicants insisted to consider the merits of the case. However, such merits was not heard by the appellate court since the appeal was held to be hopelessly barred by time and on this ground alone the appeal was dismissed. No cogent reasons were provided even at this stage as to why such delay was caused. In view of the above, I do not intend to interfere with the findings of the appellate court which has held the appeal to be hopelessly barred by time. Hence this revision application fails…

16/-                      In view of above facts and the case law referred to above, I find that the appeal is not maintainable and time barred as appellant has not deposited the Court fee stamps with memorandum of appeal nor submitted during pendency of appeal, therefore, the impugned order, do not requires any interference.

Point No.2.

17/-               In view of above discussion it appears that impugned order dated 08.06.2021, passed by learned Senior Civil Judge, Kandhkot, is not suffered from legal flaws and is not liable to be interfered, therefore, Civil Appeal filed by appellants is hereby dismissed, being not maintainable and the impugned order is maintained. Parties will bear their own costs. 

3.            Learned counsel submits that the learned appellate court ought to have considered the case on merits and not dismissed on mere technicalities.

 

4.            Heard and perused. It is noted at the very onset that the original trial court order merely observed that the appellants had invoked the wrong forum and had never placed any restraint upon the applicants to seek a remedy before the forum of appropriate jurisdiction. Applicants' counsel has articulated no cavil to the findings of the learned trial court.

 

5.            The appellate court has merely upheld the law of limitation and the learned counsel has articulated no cavil to the applicability thereof and has merely confined his articulation to suggest that adjudication on merit would have been preferable. It is the considered opinion of the Court that the prescriptions of limitation are not mere technicalities and disregard thereof would render entire law of limitation redundant[1]. It has been maintained by the Superior Courts consistently that it is incumbent upon the Courts to first determine whether the proceedings filed there before were within time and the Courts are mandated to conduct such an exercise regardless of whether or not an objection has been taken in such regard[2]. It has been maintained by the honorable Supreme Court[3] that each day of delay had to be explained and that in the absence thereof the proceedings ought not to be entertained. In the present facts and circumstances the delay could obviously not be justified.

 

 

6.            This Court has considered the contentions of the applicants 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. It is trite law[4] 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.

 

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

 

 

JUDGE


[1] Mehmood Khan Mahar vs. Qamar Hussain Puri & Others reported as 2019 MLD 249.

[2] Awan Apparels (Private) Limited & Others vs. United Bank Limited & Others reported as 2004 CLD 732.

[3] Lt. Col. Nasir Malik vs. ADJ Lahore & Others reported as 2016 SCMR 1821.

[4] Per Faqir Muhammad Khokhar J. in Naheed Nusrat 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.