ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

 

R.A.No.  54  of 2002

 

DATE                                     ORDER WITH SIGNATURE OF JUDGE

 

            For Katcha Peshi.

 

11.08.2010

 

Mr. Qazi Munawar Ali, Advocate for applicant.

Mr. Hamid Hussain, Advocate for Respondents.

                                                =

Through this revision application, the applicant Nazim Muqtida has impugned the judgment and decree dated 31.1.2002 passed by Ist Additional District Judge, Hyderabad in Civil Appeal No.128 of 1981, whereby he concurred with the judgment and decree dated 30.4.1981 passed by VIIth Joint Civil Judge, Hyderabad in Civil Suit No.147 of 1979 filed by the applicant, which was dismissed.

The facts giving rise to these proceedings are that the applicant filed a suit for possession and permanent injunction before the Extra Joint Civil Judge, Hyderabad in respect of a plot No.266 situated in Unit No.7 Latifabad Colony, Hyderabad. The Respondents contested the suit by filing their written statement. However, the trial Court framed the issues and parties led their respective evidence. On the orders of the trial Court, one Murad Ali Sub-Engineer, Town Planning Department was directed to visit the site and submit his report with regard to the plot in dispute. His report reveals that as per the approved lay-out plan, the total area of plot No.266 is 122 sq. yards whereas as per allotment order, the applicant was allotted the plot No.266 to the extent of 89 sq.yards. During proceedings it also transpired that the applicant is in occupation of 33 sq.yards in excess of the actual allotment. After hearing the learned counsel for the parties, the learned trial Judge dismissed the suit of the applicant.

            Being aggrieved, the applicant impugned the same through Civil Appeal No.128 of 1981. After hearing the learned counsel for the parties and considering the evidence, the same was dismissed by Ist Additional District Judge, Hyderabad vide his judgment dated 31st January 2002.

            It is inter alia contended by learned counsel for the applicant that the impugned judgments passed by the learned two Courts below are result of misreading and non-reading of the evidence. Per learned counsel, while passing the impugned judgment, the appellate Court did not take into consideration the material available on record. During the arguments when learned counsel was confronted with the report submitted by Sub-Engineer, he frankly conceded that actually the applicant was allotted a plot measuring 89 sq. yards and at present plot under his possession is more than actual area which was allotted to him. Learned counsel further candidly admitted that in the trial Court, the applicant did not file any objection to the report submitted by Sub-Engineer. On query learned counsel very candidly admitted that the applicant could not prove his case in trial Court, though sufficient material was available on record in support of the applicant’s claim.  

            Conversely, learned counsel for the Respondents contended that there are concurrent findings of the two Courts below and there is no illegality or infirmity in the impugned judgments. Per learned counsel, the applicant has miserably failed to prove his case. He further went on to say that according to the allotment order, the applicant was allotted a plot measuring 89 sq.yards but he has occupied the plot beyond 89 sq.yards. Per learned counsel such fact is proved by the report submitted by Sub-Engineer which reveals that at present the applicant has occupied the plot in excess of the area which was allotted to him. It is urged with vehemence that applicant had filed a frivolous suit against the Respondents and since more than three decades, the Respondents have been dragged in these proceedings from one Court to other. He lastly prayed that the instant revision be dismissed with heavy cost.

            Heard learned counsel for the parties and perused the material available on record.

            It is an admitted fact that the applicant could not prove his case before the trial Court. From the perusal of allotment order, it appears that the applicant was allotted plot No.266 measuring 89 sq.yards. It also appears that presently the applicant is in possession of more than the area which was originally allotted to him. Upon perusal of the deposition of Murad Ali, Sub-Engineer Town Planning Department, it appears that the applicant has encroached 33 sq.yards in excess of 89 sq.yards which was allotted to him, such fact is even not disputed by learned counsel for the applicant. Though the Sub-Engineer has submitted his report with regard to the plot in question but the applicant did not file any objection etc. In view of above when the applicant himself has proved that he is in possession of more area than the actual area which was allotted to him. Such conduct on the part of applicant proves that he did not approach the Court with clean hands and even on this single score alone he is not entitled to any relief. It is settled principle of law that “he who seeks equity must do equity, that is to say, the applicant in equity must come with perfect propriety of conduct or with clean hands. Fraud or misrepresentation or matters of that description stands in way of an applicant’s obtaining relief by virtue of this principle.”

            For the foregoing reasons, I do not find any merit in the instant revision application which is accordingly dismissed with the cost of Rs.5000/-           

                                                                                     

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

                                                                                                JUDGE

 

 

 

 

 

 

 

 

 

 

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