Order Sheet
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Revision No.S-02 of 2022
DATE
OF HEARING |
ORDER WITH SIGNATURE OF
JUDGE. |
1. For orders on O/objection at
flag-A.
2. For orders on CMA No.11/22
3. For orders on CMA No.367/22
4. For hearing of main case.
5. For orders on CMA No.12/22
Date of hearing.
24.03.2022
Mian
Mumtaz Ali Rabbani Advocate for Applicants.
********
ARSHAD HUSSAIN KHAN, J.- Through instant
Civil Revision Application, the applicants have called in question the concurrent
findings of facts of two courts below viz. (i) Judgment & Decree dated 27.08.2015 and 28.08.2015,
passed by Senior Civil Judge, Mirpur Mathelo, in F.C Suit No.92 of 2012 whereby
the suit of respondent/plaintiff was decreed and (ii) Judgment & Decree dated 12.10.2021, passed by
IV-Additional District Judge, Mirpur Mathelo, in Civil Appeal No. 58 of 2015 whereby
the appeal preferred by the present applicants/defendants against the judgment
and decree, passed in FC Suit 92 of 2012 was dismissed.
2. Briefly, the facts giving rise to instant Revision Application
are that respondent/plaintiff filed F.C
suit No.92 of 2012 [Re-Manohar Lal v. Karim Bux & others] for recovery of amount
of Rs.13,10,000/-against applicants /defendants, stating therein that his son, namely, Raj Kumar
purchased 957 wheat bags from Sindh
Government through his representative Kapeel Kumar son of Jaro Mal on
10.03.2011 for sending to Flour Mill Surjani Town PRC District Central Karachi
through goods transport on 10.03.2011,
vide Bilty No.797, however, said loaded vehicle did not reach at Imam Flour
Mill Karachi. Thus, respondent along with clerk of said Mill, namely, Mahesh
Kumar approached the applicants and informed them that the loaded bags of wheat
have not been arrived at Imam Flour Mill Karachi to which applicants assured
respondent that the said vehicle along with wheat will reach soon, however, in case
of failure they will be responsible to pay the price of wheat bags to the
respondent. However, despite lapse of sufficient period when the said wheat
bags did not reach at the destination, the respondent approached applicants to
resolve the matter but he kept them on hollow hopes, resultantly respondent
lodged FIR at Police Station, Mirpur Mathelo. It has been stated that after
registration of FIR applicants contacted with respondent to resolve the matter
through arbitration. In pursuance thereof, an Iqrarnama was executed between applicants
and respondent and the matter was decided with consent of both the parties through
arbitration. Pursuant to the terms of the said decision the applicants had to
pay the entire amount in installments. However when the applicants failed to
pay the amount in terms of the arbitration award the plaintiff/respondent filed
suit with prayer to pass judgment and decree as under;
i). To pass decree and judgment against the
defendants directing them to pay Rs.13,10,000/-
ii). To award any other relief which this Court
deems fit;
iii). To award the cost of suit.
3. The said suit, after a full-dressed trial, was decreed in
favour of the plaintiff/respondent, vide judgment dated 27.08.2015. Relevant
portion of the judgment is reproduced as under;
“In the light of my findings
on issue No.1 to 4, I have come to the conclusion that plaintiff has
established his claim that he has got loaded 957 wheat bags through Pak
Bismillah goods transport company through vehicle TLB-580 on 10.3.2011 vide bilty
No.979 but the same wheat has not been reached at the destination at Karachi
and as per Iqrarnama dated 20.03.2012 Exh.40/B and faisla made between
plaintiff and defendants reduced in writing on stamp papers, the defendants are
liable to pay the amount of wheat of Rs.13,10,000/- to the plaintiff, thereby
the plaintiff is entitled for the relief claimed. So far as the case law relied
upon by the learned counsel for defendants reported in 1991 CL 712 Karachi and
2010 YLR1883, are concerned, which are pertaining to limitation point of filing
present suit but according to issues framed dated 10.4.2013 no issue of
limitation was framed, however I would like to make it clear that the bilty
No.979 was issued by Pak-Bismillah Goods Transport Company on 10.3.2011 and
later on the plaintiffs were requesting the defendants to pay the amount of
wheat to them and such Iqrarnama Exh.40/B in faisla Exh.40/C were reduced in
writing on 20.3.2012 and so far as the period of limitation for filing the suit
of this nature is one year therefore, in my humble view the question of
limitation for filing present suit does not arise and the case law relied upon
by learned counsel for defendants are not applicable to the facts and
circumstances of the present case in the light of my findings on issue No.1 to
4. The defendants are therefore, directed to make payment of amount of wheat of
Rs.13, 10,000/- to plaintiff within one month. The issue No.5 is therefore,
decided in affirmative.
Issue No.6. In view of the
above findings on issue No.1 to 5, I hold that plaintiff has established his
claim therefore, the suit of plaintiff is decreed, as prayed, with no order as
to cost. Let such decree be prepared accordingly.
4. The said decree was subsequently, challenged by applicants/defendants
in Civil Appeal No.58 of 2015, which was maintained by learned IV-Additional
District Judge, Mirpur Mathelo, vide
judgment dated 12.10.2021. Relevant portion whereof is reproduced as under;
“As per statement of learned
of learned counsel for appellant that no document regarding wheat bags was
produced by the Incharge Wheat Godown, Food Deptt: such as entry like truck
number and name of driver with CNIC, find that Exh:47/A of the suit shows name
of truck driver Muhammad Umer Khan and number TLB-580. Moreover, the bilty has
been proved to be genuine at issued No.2 of the judgment.
In light of the above
discussion, I find that the learned trial Court has passed judgment and decree
legally and the same do not require any interference of this Court. The case
law referred by learned counsel for the respondent is attracted with the facts
and circumstances of the present case. I therefore, answer point No.1 in
negative”.
5. Learned
counsel for the applicants
while reiterating the facts has contended that orders impugned herein are not
sustainable in law and facts
both. It is contended that the learned courts below while passing the impugned
orders have failed to consider the evidence available on the record, which fully support the stance
of the applicants.
6. The provisions of Section 115, C.P.C.
envisage interference by the High Court only on account of jurisdiction alone,
i.e. if a court subordinate to the High Court has exercised a jurisdiction not
vested in it, or has irregularly exercised a jurisdiction vested in it or has
not exercised such jurisdiction so vested in it. It is settled law that when a
court has jurisdiction to decide a question it has jurisdiction to decide it
rightly or wrongly both in fact and law. The mere fact that its decision is erroneous
in law does not amount to illegal or irregular exercise of jurisdiction. For an applicant to succeed under Section 115,
C.P.C., he has to show that there is some material defect in procedure or disregard of some rule of law in the
manner of reaching that wrong decision. In other words, there must be some
distinction between jurisdiction to try and determine a matter and erroneous
action of a court in exercise of such jurisdiction. It is a settled principle of law that
erroneous conclusion of law or fact can be corrected in appeal and not by way
of a revision, which primarily deals with the question of jurisdiction of a court
i.e. whether a court has exercised a jurisdiction not vested in it or has not
exercised a jurisdiction vested in it or has exercised a jurisdiction vested in
it illegally or with material irregularity.
7. No such infirmity has been shown by
learned counsel for the applicants to call for interference in the impugned
judgments by this Court. It is well settled that if no error of law or defect
in procedure had been committed in coming to a finding of fact, the High Court
cannot substitute such findings merely because a different findings could be
given. It is also well settled law that concurrent findings of the two
courts below are not to be interfered in revisional jurisdiction, unless extra
ordinary circumstances are demonstrated by the applicants. It is also trite law
that a revisional court does not sit in reappraisal of the evidence and is
distinguishable from the court of appellate jurisdiction. Reliance in this regard can be
placed in the cases of Abdul Hakeem v. Habibullah and 11 others [1997
SCMR 1139], Anwar Zaman and 5 others v. Bahadur Sher and others [2000
SCMR 431] and Abdullah and others v. Fateh Muhammad and others [2002 CLC
1295].
8. The upshot of the
above discussion is that no illegality, irregularity or jurisdictional error in
the concurrent findings of the lower appellate courts could have
been pointed out by learned counsel for the applicants. Resultantly, the civil revision in hand, being devoid of any force and merit, is dismissed in limne.
J U D G E
Ihsan.