IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
Civil Revision Appln. : Abdul Karim Bugti and others vs.
No. S- 104 of 2021 Shahid Hussain Bugti & others
For the Applicants : Mr. Atta Hussain Chandio, Advocate
For the Respondent No.1 : Mr. Ajmair Ali Bhutto, Advocate
For official respondents : Mr. Abdul Hamid Bhurgri, Addl. A.G.
Date of hearing : 21.02.2022.
Date of announcement : 21.02.2022.
ORDER
Agha Faisal, J. Briefly stated, a suit was filed before the learned Senior Civil Judge-I, Larkana, and vide order dated 24.3.2021 the plaint was rejected on account of the suit being time barred. In appeal, impugned order was set aside, hence this revision.
2. Applicants’ counsel submits that the findings of the learned trial Court were correct and the learned appellate Court appears to have erred in reversing the same. It is submitted that the record was properly appreciated by the learned trial Court and that the same clearly shows that the suit was time barred, however, the learned appellate Court failed to appreciate the same.
3. Learned counsel for respondent No.1 at the very onset challenged the maintainability of the present revision application and submitted that applicant was required to file all the relevant documentation and he has clearly failed to do so. In addition thereto it was submitted that question of limitation is a mixed question of law and facts and the same ought to have been decided on the basis of evidence and not on the basis of conjectures and surmises, hence, findings of the learned appellate Court are in accordance with law.Learned Addl. A.G. supported the impugned appellate Order and submitted that no plaint ought to be dismissed merely on the mis-joinder or non-joinder of the parties and even otherwise the question of limitation is a mixed question of law and facts, as rightly held by the learned appellate Court.
4. Heard and perused.In application of Order VII rule 11 CPC, it is settled law that the question of whether a suit was likely to succeed or not was irrespective of whether or not the plaint ought to have been rejected[1].It is often seen that while a plaint could not have been rejected, however, a suit was dismissed eventually for a host of reasons.The evolution of law with respect to rejection of plaints was chronologically catalogued in the Florida Builders case[2] wherein the august Supreme Court demarcated the anvil upon which the decisions in such matters ought to be rested. A Division Bench of this court has held in the Rana Imran case[3] that in the instance of controversial questions of fact and / or law, the provisions of Order VII rule 11 CPC would not be attracted and the proper course for the court, in such cases, was to frame the relevant issue/s and decide the same on merit in the light of evidence and in accordance with the law.
5. The learned trial court rejected the plaint as the suit appeared thereto to be barred by law. The import of the word appear has been considered in the Florida Builders case[4] and the Supreme Court has deciphered the legislative intent to mean that if prima facie the court considered that it appears from the statements in the plaint that the suit was barred, then it should be terminated forthwith. The plaint states that cause of action accrued a month ago, hence, no manifest limitation issue is apparent. Whether the said contention succeeds at trial or otherwise is a decision that could only be made upon conclusion of the trial. In the present facts and circumstances the learned appellate court has cogently reasoned as to why the plaint in the suit did not appear to be barred by law. Learned counsel for the appellants have been unable to demonstrate any lacuna in the reasoning and / or infirmity in the exercise of discretion by the learned appellate court, hence, and the judgment thereof is hereby sustained.
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 judgmentis 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[5] 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. It is the considered view of this court that no manifest illegality has been identified in the judgment impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
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.
JUDGE
[1]Al Meezan Investment Management Company Limited & Others vs. WAPDA First Sukuk Company Limited & Others reported as PLD 2017 Supreme Court 1.
[2]Haji Abdul Karim & Others vs. Florida Builders (Private) Limited reported as PLD 2012 Supreme Court 247.
[3]Per Muhammad Ali Mazhar J. in Rana Imran & Another vs. Fahad Noor Khan & Others reported as 2011 YLR 1473.
[4]Haji Abdul Karim & Others vs. Florida Builders (Private) Limited reported as PLD 2012 Supreme Court 247.
[5]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.