IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

CP No. S- 571 of 2019        :           Prem Chand vs.

Zafarullah &Others

 

For the Petitioner                 :           Mr. Zamir Ali Shah, Advocate

 

For Official Respondent/s  :           Mr. Liaquat Ali Shar, Addl. A.G.

                                                           

Date of hearing                    :           14.02.2022.

 

Date of announcement      :           14.02.2022.

 

ORDER

 

Agha Faisal, J.         (1) Over ruled. (2) Vide order dated 22.3.2019 the learned 2nd Senior Civil Judge, Shikarpur, had been pleased to allow an application under Order 1 Rule 10 CPC. In revision the learned Additional District Judge-V, Shikarpur was pleased to set aside the earlier order vide order dated 10.5.2019. The operative findings are reproduced herein below:

 

                “I have considered the arguments advanced by both the party advocates and perused the material  available on record. The respondent No.6 claims that in the F.C. Sit No.46/2019 the property Hindu community is involved hence he being Mukhi of Hindu community has filed application U/O 1 Rule 10 CPC for joining him as defendant to defend the rights of Hindu community involved in the matter and the learned 2nd Senior Civil Judge Shikarpur has rightly decided the application and joined him as defendant to defend the rights of Hindu Community. In the application U/O 1 Rule 10 CPC the respondent No.6 claims to be Mukhi of Hindu Panchayat Committee Chak but he has failed to produce any document which could show that the Hindu Panchayat Committee Chak has appointed him as Mukhi of the Hindu Committee Chak. ON one side the respondent No.6 claims to be Mukhi of the Hindu Committee Chak and on other side he has filed application in his personal capacity and the applicant has challenged the order on this sole ground that respondent No.6 Prem Chand has no any locus standi. The respondent No.6 has failed to produce any authenticate document proof alongwith his application that he is Mukhi of Hindu Panchayat Chak Town, mere saying that he is Mukhi of any Panchayat does not prove him to be Mukhi as he has to prove the same with documentary evidence for which the respondent No. 6 has failed to produce any document before this Court. If Hindu Panchayat Chak has any claim/ right in the dispute property, the Panchayat may appoint any person as attorney or through their appointed Sarpanch/ Mukhi to come and to file application for joining as defendant to defend their right. The application filed by respondent NO.6 Prem hand is on personal capacity merely claiming to be Mukhi without any documentary proof. Under the facts and circumstances, I am of the considered view that the order dated 22.3.2019 passed by learned 2nd Senior Civil Judge Shikarpur requires interference, hence this civil revision application is allowed and the order dated 22.3.2019 is set aside, with the result the application U/O 1 Rule 10 CPC filed by respondent No.6 Prem Chand in the trial Court is dismissed. The parties shall bear their own costs. The case law relied upon by learned advocate for respondent No.6 with due respect are distinguishable from the facts and circumstances of the instant revision application.”

 

2.            The present petition has been filed assailing revisional order. It is contention of the learned counsel for petitioner that the same is otherwise than in accordance with law. Learned counsel has articulated that the petitioner was a necessary and proper party to the original suit, hence, his absence there from would not be in the interest of justice.Learned Add. A.G. supports the impugned judgment and submits that it does not merit any interference.

 

3.            Heard and perused. The underlying suit was filed by the respondent No.1 seeking to assert his rights in respect of the subject property. It is an admitted fact that the present petitioner does not claim any individual rights in the suit property but claims to act in a representative capacity, on behalf of the Hindu community at large. Learned revisional Court was of the considered view that the petitioner remained unable to justify his claim of being a representative, hence, the impugned order. Even otherwise there is no impediment to any claimant in respect of the subject property to assert their own rights by way of their own independent proceedings.

 

4.            The ambit of constitutional petition is not that of yet another forum of appeal and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned. It is trite law[1] 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.

 

5.            In view hereof, we are constrained to observe that no case has been set forth for the invocation of the discretionary writ jurisdiction of this Court, hence, this petition, along with pending application, is hereby dismissed.

 

                                                                    JUDGE

                                                         

 


[1]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.