IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Rev. Appln. 03 of 2020 : Fareed Ahmed Soomro Vs.
Zamir Ali Soomoro
For the Applicant : Mr. Abdul Rehman A. Bhutto Advocate
Date of hearing : 10.03.2022
Date of announcement : 10.03.2022
ORDER
Agha Faisal, J. (2) Granted subject to all just exceptions (1,3&4) A suit for specific performance of contract, possession and permanent injunction was filed by the applicant before the court of II-Senior Civil Judge, Shikarpur and vide judgment dated 29.01.2018, the same was dismissed observing as follows:-
"Record shows that plaintiff did not examine the witnesses of agreement. It is requirement of the law that either written agreement or oral agreement is to be proved by examining marginal witnesses in which plaintiff failed. Plaintiff did not provide any payment of receipt before this court tin his evidence. The suit of the plaintiff is also hit by law of limitation as he contended that agreement of sale was done in the year 1993. Though this is exparte proceeding case but plaintiff has to stand on his own legs and cannot take advantage of the weakness of other party. Court is aware and conscious to safeguard and protect the right of parties. Therefore the suit of the plaintiff is dismissed with no order as to costs."
The appeal against the aforesaid judgment was also dismissed vide order dated 25.10.2019 and the operative findings are reproduced herein below:
"9/- The perusal of record shows that admittedly appellant is allegedly claiming that he entered into oral sale agreement with respondent in the year 1993 regarding purchase of Suit property. It is also admitted position that appellant himself has mentioned in plaint that he accrued cause of action in the year 1993 but the above suit was filed in the year 2017 after lapse of about 24 years in total violation of provisions of Article 113 of Limitation Act, 1908 which provides period of three years limitation. It is also admitted position that appellant only recorded his statement before learned trial Court and he did not bother to examine even his both witnesses namely Ghulam Akbar and Arbab Ali. As the matter of fact, it was incumbent upon the appellant to examine his marginal witnesses but he failed to do so.
10/- It is also admitted position that appellant himself has admitted that respondent is one of share holder in suit property and he was not exclusive owner of the suit property, hence how he entered into oral sale agreement with the appellant. It is admitted position that there were exparte proceedings before learned trial Court but even then it is settled principle of law that a party brings case before the Court, same should stand on his own legs and that party cannot take advantage of weakness of other party. As the matter of fact, the appellant completely failed to prove his case before learned trial Court and even same was hopelessly time barred, hence the Suit of appellant was rightly dismissed by learned trial Court. It is admitted position that no any material illegality or irregularity has been pointed out by learned counsel for appellant in the impugned Judgment and Decree. On the other hand, detailed, speaking and well reasoned Judgment followed by Decree have been passed by learned trial Court which needs no interference by this Court at appellate stage, hence Point No.1 is replied in Negative. Before parting with this, I may mention that case law relied upon by learned counsel for respondent is helpful and relevant with the case in hand.
11/- The result of aforesaid discussion is that impugned Judgment and Decree dated; 29.01.2018 respectively passed by the learned IInd Senior Civil Judge, Shikarpur are in accordance with law and are not suffering from any legal flaw, as such same are not liable to be interfered, therefore, civil appeal filed by appellant is hereby dismissed and impugned Judgment and Decree are maintained. The parties shall bear their own costs. Let the decree be prepared and R&Ps of F.C Suit No. 94/2017 along-with copy of this Judgment and Decree be communicated to the learned trial court for information."
2. Learned counsel submits that the courts below were unable to appreciate the facts and record in their proper perspective hence the orders merited interference in revision.
3. Heard and perused. It is observed that despite this revision having been instituted in 2020, even the requisite court fee has not been paid as of date. This revision merits dismissal on this ground alone.
4. The issue on merit before this court is that of limitation and it is contended that the same could not be made the basis to non-suit an applicant. Respectfully, this court does not concur with the applicant's assertion. 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.
5. 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[4]. 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.
6. 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[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 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.
7. 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 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] 2011 SCMR 758; 2007 SCMR 236; 2006 SCMR 5; 2006 SCMR 1304.
[5] 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.