IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

Present:

Irshad Ali Shah, J.

Agha Faisal, J.

 

CP D62 of 2020                   :           Abdul Rehman Brohi & others vs.

Abdul Aziz Qureshi & others

 

For the Petitioners               :           Mr. Imdad Ali Mashori, Advocate.

                                                           

Dates of hearing                  :           09.03.2022.

 

Date of announcement      :           09.03.2022.

 

 

ORDER

 

Agha Faisal, J.         The petitioner has challenged the order dated 28.10.2019 passed by the learned 3rd Additional District Judge, Larkana, in Civil Revision Application No.22/2019. It is illustrative to reproduce the operative findings herein below:

 

                “I have heard the parties and have gone through the case file. Perusal of case file reveals that order whereby Civil Suit No11/1984 was reconstituted by learned trial Court has not been challenged, therefore, the same order attained finality. Moreover applicants have claimed that they are legal heirs of Sawali Khan who died issueless but no such documentary proof has been produced by the applicants which can show that the applicants are the only surviving legal heirs of deceased Sawali Khan. Furthermore the applicants while contesting application under Section 12 (2) CPC filed statement before learned trial Court on 29.09.2012 wherein they have stated that they shall produce original documents at the time of evidence but they did not produce any such document before learned trial Court. Apart from this, the applicants on 29.09.2012 also provided list of witnesses namely Rehmatullah and Waryal but no one from both these witnesses were examined by the applicants before learned trial Court. Perusal of record shows that deceased Sawali Khan in his life time did not challenge the judgment and decree which the applicants have alleged that was obtained against Sawali Khan by way of fraud and misrepresentation. Applicants have claimed that they were informed by one Babu Qureshi about the judgment and decree but the said Babu Qureshi was not examined by the applicants before learned trial Court in order to get corroboration of their claim. Therefore, I am of the view that applicants have failed to prove that any fraud or misrepresentation was made in obtaining alleged judgment and decree. Resultantly I am of the view that the application under Section 12 (2) CPC has rightly been dismissed. Therefore, civil revision application in hand merits no consideration and is hereby dismissed with no order as to costs.”

 

2.            Learned counsel submits that the revisional Court has not appreciated the record in its proper perspective, hence, the impugned order merits interference in the writ jurisdiction of this Court.

 

3.            Heard and perused. The impugned order categorically observes that the pronouncement whereby the case file of the subject suit was reconstituted by the learned trial Court had not been challenged, hence, has attained finality. It is also observed that no justification could be provided to maintain the locus standi of the applicants. The order also demonstrates that the applicants abjured the opportunity to produce the relevant original documents before the trial Court and that none of their cited witnesses were ever examined, by the applicants, before the trial Court. It is also seen that the person from whom the applicants claim title never challenged the judgment and decree in his life time. 

 

4.            A perusal of the impugned order demonstrates that the same has been rested on cogent grounds, disclosed and discussed therein. Learned counsel has remained unable to demonstrate any infirmity with respect to the impugned order.

 

5.            Article 199 of the Constitution contemplates the discretionary writ jurisdiction of this Court and the said discretion may be exercised in the absence of an adequate remedy. In the present matter the alternate remedy has already been invoked and exhausted and no case is made out for entertaining this matter in the writ jurisdiction.Even otherwise the entire premise of the petitioner is based upon disputed questions of fact, requiring detailed factual inquiry, investigation and / or evidence. It is settled law that the adjudication of disputed questions of fact, requiring evidence etc., is not amenable in the exercise of writ jurisdiction[1].

 

6.            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 orders 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.            In view hereof, we are constrained to observe that in the lis before us the petitioner’s counsel has been unable to set forth a case for the invocation of the discretionary[3] writ jurisdiction of this Court, hence, the listed petition is hereby dismissed.

 

 

                                                                   JUDGE

 

JUDGE

 


[1]2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 Supreme Court 415;

[2]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.

[3]Per Ijaz Ul Ahsan J. in Syed Iqbal Hussain Shah Gillani vs. PBC & Others reported as 2021 SCMR 425; Muhammad Fiaz Khan vs. Ajmer Khan & Another reported as 2010 SCMR 105.