ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Civil Revision No. S – 109 of 2010
|
Date
of hearing |
Order with
signature of Judge |
Hearing
of case (priority)
1.
For hearing of
main case
2.
For hearing of CMA
No.393/2010
23-08-2021
M/s Abdul Qadir
Shaikh and Abdul Aziz Shaikh, Advocate for the applicant.
Mr. Zulfiqar Ali
Naich, Assistant Advocate General Sindh.
.-.-.-.-.-.-.-.-.-.-
None present on behalf of private
respondents, and since the matter is pending since 2010, Counsel for the
applicant has been heard.
Per learned Counsel, the learned Trial
Court vide its consolidated judgment dated 12-11-2009 passed in F.C. Suit No.
50 of 2005 and F.C. Suit No. 02 of 2006 had dismissed both the Suits; however,
in Appeal, the applicant’s Suit has been decreed only to the extent of Rs.400,000/-,
whereas, Suit No. 02 of 2006 of the respondents has been decreed as prayed.
According to him, a settlement / faisla was reached between the parties and
was presented in his evidence by the applicant, which has been discarded by the
Courts below; that no finding has been recorded, whereas, it was obligatory for
the Court to examine the evidence and to pass appropriate judgment and decree
on this issue. He has prayed for grant of the relief being sought through this
Revision Application.
I have heard the learned Counsel for
the Applicant and perused the record. Insofar as reliance on the purported
agreement or faisla dated 26-11-2002 produced as “Exhibit 35/A” is
concerned, it appears that before the Trial Court, no issue was settled in this
context. If the applicant wanted any adjudication on this faisla, then,
not only he was required to plead the case in this regard; but so also get a
proper issue framed on the same and then lead its evidence. Admittedly, no such
issue was ever settled and if the applicant was aggrieved, then he could have
moved an application for settlement of amended issues. This is not the case. In
fact, the evidence led by the Applicant and his cross examination[1] does not support this
stance, as apparently, he was seeking recovery of money which to a certain
extent has been granted by the Appellate Court. The Learned Trial Court, after
going through the evidence on the relevant issues, has been pleased to hold as
under:
“ISSUE NO.3.
The learned
counsel for defendants has argued that plaintiff Bhagoo Mal filed suit for
declaration, damages, rendition of accounts and permanent injunction. He
has argued that the plaintiff in his evidence has claimed an amount of
Rs.39,60,000/- is outstanding against the defendants. He has argued that in the
plaint the plaintiff has stated that he had spend an amount of Rs.44,15,000/-
on the welfare of defendants. He has argued that the plaintiff is not valued
his suit property in order to avoid payment of court fee stamps.
On
the other hand the learned counsel for plaintiff has argued that suit is
properly valued and is not under valued. Perusal of plaint shows that the
though the plaintiff asked for rendition of accounts but the perusal of plaint
shows that the plaintiff actually want decree of 44,15,000/- allegedly covered
by him and alleged expenses of defendants. It appears that the plaintiff is not
valued his suit at Rs.44,15,000/-. In evidence the plaintiff has deposed that
an amount of Rs.44,60,000/- is due against the defendants, thus it appears that
the plaintiff actually wanted decree of 39,60,000/- but the plaintiff in order
to avoid the payment of court fee stamp titled his case as suit for rendition
of accounts, I therefore, hold that the suit is under valued. The issue is
therefore, answered as accordingly.
ISSUE NO.5.
As regards the issue, there is no
dispute between the parties that late Jesso Mal left properties bearing No.290
& 291 situated in City Gambat. The documents available on record also shows
Jesso Mal was owner of properties No.290 & 291 Gambat City. As requires the
cash amount of Rs.80,000/-, no documentary evidence is available on record to show
that Jesso Mal has left an amount of Rs.80,000/- in a bank, I therefore, hold
that Jesso Mal on his death had left property No.290 & 291 Gambat City. The
issue No.5 therefore, answered accordingly.
ISSUE NO.6.
The learned counsel for the
plaintiff Bhagoo Mal has argued that Bhagoo Mal after death of Jesso Mal used to
look after and maintain entire family. He has argued that Bhagoo Mal from the
year 1980 to 2000 incurred an amount of Rs.42,51,000/- over the maintenance of
the defendants.
On the other hand the learned
counsel for the defendants has argued that the plaintiff Bhagoo Mal after death
of Jesso Mal occupied over the entire business of his father and dispose off properties
left by the father illegally. He has argued that the plaintiff have filed the
fake suit and given false accounts. Burden to prove this issue was upon the
plaintiff Bhagoo Mal. The plaintiff in para No.8 of the plaint has given detail
of expenses allegedly incurred by him on the defendants totaling of Rs.42,51,000/-.
No documentary proof regarding alleged expenses is produced by the plaintiff
either in evidence or with plaint. There are mere words of the plaintiff on
this issue. No any witness is examined by the plaintiff in support of this
issue. Hence, this issue remained unproved and as such as answered accordingly.”
Perusal of the aforesaid
observations of the Trial Court clearly reflects that the applicant had failed
to prove its case with any amount of confidence inspiring evidence in support
of his reliance on this purported faisla or settlement as claimed. Therefore,
the Suit was rightly dismissed by the Trial Court.
Insofar as the judgment of the Appellate Court is
concerned, to certain extent the relief regarding expenses incurred by the
applicant on the marriage ceremonies of his family members has been granted. As
to the other claims, it has come on record that the applicant has failed to
produce any supporting evidence.
The Applicant’s Counsel has vehemently argued that
once a document was led in evidence and was not cross examined on that; it
stands proved and no other exception can be drawn. Though this argument appears
to be attractive, and in some cases is correct; however, the said rule is also
not absolute and is not an infallible one. At times as per the facts and
circumstances of the case such omission as to cross‑examination loses
weight[2].
Needless to mention that in this
limited Revisonal jurisdiction under section 115 CPC, wherein, the two Courts
below have recorded concurrent findings against the Applicant, this Court
cannot appreciate the evidence afresh; whereas, neither a case for any misreading
or non-reading of the material on record is made out; hence, in the facts and
circumstances of this case, no case is made out by the applicant for exercising
any discretion to upset the findings of the Courts below. Accordingly, this
Revision Application is hereby dismissed with pending application.
J U D G
E
Abdul Basit
[1] “………… It is a fact that at the time of death of my father, the defendants No.1 to 4 and our sister were minor, only one elder sister. ………… It is a fact that I have got withdrawn the said cash amount from MCBL without permission of the court or obtained my succession certificate. It is incorrect to suggest that I go withdrawn the said amount from MCB in collusion with bank staff. It is a fact that property No.290, 291, 946 and 947 situated in Gambat town was mutated in the name of my father in the record of town committee Gambat. It is a fact that in 1982 I got transferred all the properties left by our father in my own name without consent of my other brothers and mother. ………… I have not produce any document proof to show that the property bearing No.947 is originally owned by me. It is a fact that in the property left by my father viz; two godowns and two houses and cash amount we five brothers and one mother are entitled to inherit the share according to Hindu Law.”
[2] See Syed Muhammad Saleem v Ashfaq Ahmad Khan (1989 CLC 1883 and Shah Muhammad v. Fazal Bibi (1980 C L C 1540).