IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Rev. Appln. 33 of 2018 : Zulfiquar Ali & another vs.
The P.O Sindh & others
For the Applicant : Mr. Imdad Ali Mashori Advocate
For the Respondents : Mr. Blosch Ahmed Junejo, Advocate
Mr. Abdul Hamid Bhurgari
AAG Sindh
Date of hearing : 03.03.2022
Date of announcement : 03.03.2022
ORDER
Agha Faisal, J. The applicant had filed a suit for declaration and permanent injunction and the same was allowed vide judgment dated 10.10.2017. An appeal was filed there against by the applicant and the same was dismissed with costs vide judgment dated 08.02.2018, hence, this revision application.
2. The crux of the applicants' arguments is that the respondent No.8 had earlier filed suit in respect of the same controversy and the plaint had been rejected. It was further contended that the appeal against the said order had also been dismissed for non-prosecution, hence, the said respondent was precluded from filing a fresh suit in respect of the same cause.
3. The learned counsel for respondent No.8 has contended that Order VII Rule 13 C.P.C specifically permits institution of a suit on the same cause of action if the plaint had been rejected, provided that the relevant infirmity has been cured and the institution is permissible under the law. Learned counsel stated that the courts below had rightly adjudicated the lis and even the costs imposed upon the applicant have not been paid till date. It is, thus, contended that there are concurrent findings in favour of the said respondent which merit no interference herein.
4. The learned Additional Advocate General, Sindh submits that notwithstanding the squarely applicable import of Order VII Rule 13 C.P.C, when the initial suit was filed the cancellation of revenue entries by the concerned officials had not taken place, as per the pleadings, therefore, the fresh suit, in any event, pleaded a subsequent cause of action, hence, could not be considered to be barred under the principles of res judicata.
5. Heard and perused. Applicants' counsel has articulated no cavil to the cancellation of the revenue entries having taken place post institution of the earlier suit. Learned counsel has also remained unable to dispel and / or distinguish the permissibility of re-institution per Order VII Rule 13 CPC. In this context it may be safe to observe that applicants' claim could not be rested on the arguments articulated in such regard.
6. The judgments have clearly appreciated the evidence and concluded in favour of the respondent. 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. 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[1].
7. It is imperative to denote that the present proceedings are revisionary and not yet another stage of appeal and that the dearth of evidence could not be transcended by recourse to revisionary jurisdiction.
8. 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. It is trite law[2] 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 judgments impugned and further that no defect has been pointed out in so far as the exercise of jurisdiction is concerned of the subordinate fora.
9. It is the considered view of this court that the applicant has 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