IN THE HIGH COURT OF SINDH
AT LARKANA
Civil R.A.S-59 of 2020 : Nisar Ahmed Bhutto &Others vs.
Sarfaraz Khan Pathan & Others
For the Applicants : Mr. Faiz Muhammad Larik, Advocate
Date of hearing : 14.02.2022
Date of order : 14.02.2022
ORDER
Agha Faisal, J.(1) Granted; subject to all just exceptions. (2)In the suit filed by the applicants, the learned III-Senior Civil Judge, Larkana was pleased to reject the plaint vide order dated 03.10.2019. The operative part is reproduced here-in-below:
“Perusal of plaint shows that, plaintiff filed present suit on 17.04.2019 and attached P.S copy of order passed by the Mukhtiarkar (Revenue), Taluka Bakrani on 31.12.2014, Deputy Commissioner, Larkana order passed on 2nd July, 2015 and Additional Commissioner, Larkana order passed on 9thOctober, 2018. The plaintiff No.1 namely Nisar Ahmed son of Arbab Ali Bhutto filed his application before the Mukhtiarkar Revenue Taluka Bakrani regarding Serial No.622, 624, 625, 626, 627, 620, 630, 631, 632, 626 and 633 in Deh Dandano Taluka, after filing of application filed by the plaintiff No.1. Mukhtiarkar Revenue Taluka Bakrani called reported from ST/Tapedar of beat for verifying revenue record, after receiving report, Mukhtiarkar Revenue Taluka Bakrani order passed on 31.12.2014, which is reproduced as under:
“Tapedar/ST beat has further reported that applicant NisarAhmed son of Arbab Ali Bhutto did not possess any above property and there is no any property stand in the name of applicant’s father.”
Therefore, applicant/plaintiff No.1 preferred appeal before the Deputy Commissioner, Larkana who also order passed on 2nd July, 2015 as under:
“After hearing the parties at length and examining the relevant record minutely, it appears that record is maintained property in favour of opponents. There is no…………….. failed to produce any authenticated document/paper in support of versions, hence there also no sufficient reason on the basis of which valid entries may be
cancelled. The result is that present application of petitioner for cancellation the entry No.460 dated 21.6.1965 of Deh Dandano, Taluka Bakrani falts and it is hereby filed/dismissed being baseless.
Thereafter, applicant/plaintiff No.1 preferred appeal before the Additional Commissioner, Larkana who also passed order on 09th October, 2018 as under:
“Appellant before this court and thoroughly perused the revenue
record submitted before me and heard both the parties. I have observed that disputed entry No.60is very old of 1965. The appellant is not even in possession of the said land.Appellant has notproduced any proof or compelling evidence in his favor. Being an old entry, I maintain the order dated 23.07.2015, passed by Deputy Commissioner Larkana with advice to appellant to approachthe civil court of law anddismiss the instant application badly time barred.”
Thereafter plaintiffs did not file appeal against the said Order of Additional Commissioner, Larkana before the Member Board of Revenue Hyderabad to avail the remedy of appeal before revenue forum. Therefore, the suit of plaintiff is not maintainable according to law, as the jurisdiction of civil court without availing remedy before revenue forum is barred. Hence the suit of plaintiff is hitby provisions of section 172 of Land Revenue Act, 1967 as well as section 11 of Sindh RevenueJurisdiction Act 1875. For ready reference, section is hereby reproduced as under:-
“Suits to be entertained unless plaintiff has exhausted right of appeal. No Civil Court shall entertain any finally the word “Government” was sub, for the word “Crown” by P.O No.1 of 1961) (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”. Reliance placed upon case law reported on 2011 CLC 88, 2007 of CLC 1790.
Thus having come across to this situation I do not agree with the argument advanced by learned counsel for the plaintiff as he failed to produce any single document in his favour to substantiate his claim even otherwise the plaintiff has also not exhausted all legal remedies available at revenue forum and simply rushed before civil court, which is not warranted under law as enunciated under section 11 of Sindh Revenue Jurisdiction Act 1875, hence under such circumstances I find it fitness of things to allow this application u/o 7 Rule 11 CPC. The plaint is hereby rejected u/s 7 Rule 11 CPC by leaving the parties to bear their own cost. Let such decree be drawn accordingly.”
2. The applicant then assailed the Order before the Court of learned III-Additional Sessions Judge, Larkana and the said appeal was dismissed on account of being time barred. The operative part is reproduced here-in-below:
“I have heard the counsels for the parties and have gone through the case file. I have also gone through the R&Ps of this case. Perusal of case file shows that impugned order was passed on 03.10.2019, application for issuance of certified true copy of impugned order was moved by the appellant on 05.10.2019 which copy was made ready and delivered to the appellant on 05.10.2019. But the appellant filed instant appeal on 19.11.2019 which is time barred by six days. Appellant has annexed with this appeal, an application under Section 5 of Limitation Act, 1908 along with its supporting affidavit wherein the appellant has asserted that his advocate was ill who was admitted in the hospital due to which he could not file instant appeal within time. However, in support of same application under Section 5 of Limitation Act, the appellant has not submitted any proof such as medical advice of any physician, or admission and discharge slip of hospital, which can show that appellant's advocate was admitted in any hospital due to his illness or he was advised by any doctor to take bed rest. Moreover it is settled law that exemption in time limit is granted to the party and not to the counsel of the party. But in instant case the appellant has not shown sufficient reason which kept him from filing instant appeal within time as appellant has nowhere stated in his application under Section 5 of limitation Act, 1908 that he himself was ill and his illness kept him from filing instant appeal within time. It is also settled law that the party has to explain each and every day of delay in fling the appeal but in present case the appellant has failed to satisfy this court on the point of delay of six days in filing instant appeal. Resultantly application under Section 5 being filed without sufficient reason and cause is hereby dismissed and in consequence thereof civil appeal in hand being time barred is hereby dismissed. There is no order as to cost.”
3. The learned counsel was asked whether the narration contained in the respective orders was factual and he replied in affirmative, however, stated that the appeal ought to have been considered on merits and not 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 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 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.