ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
.
R.A. No. 110 of 2014
Date of Hearing : 19.09.2016
Date of decision : 19.09.2016
Date of reasons : 23.09.2016
Applicant : Muhammad Ibraheem through
Mr. Masood Khan Ghori, Advocate
Respondent : Mumtaz Bano through her L.Rs Through Ms. Farkhunda Jabeen, Advocate
O R D E R
MUHAMMAD IQBAL KALHORO, J: Applicant is aggrieved by the judgment passed on 30.04.2014 and decree drawn on 06.05.2014 by learned V Additional District Judge Karachi, West in Civil Appeal No.136/2011 stemming from the judgment and decree dated 28.04.2014 rendered in civil suit No.202/2002 filed by the respondent against the applicant.
2. Succinctly facts leading to this revision application are that the respondent Mumtaz Bano filed a suit for declaration and permanent injunction against the applicant in the court of IInd Sr. Civil Judge Karachi West; declaration to the effect that she was owner of plots bearing No.107 & 107/A, Jam Nagar, Baldia Town, Karachi and permanent injunction for restraining the defendant or anyone else acting on his behalf from ejecting her from the said plots. Citing the background for filing the said suit, she has stated that applicant/ defendant who resides in front of the said plots had offered to purchase the said plots from her but when she refused, he got annoyed and turned hostile to her and other family members, got them implicated in criminal cases; and thereafter on the one hand he was not allowing the plaintiff to raise construction on the plots and on the other hand was also attempting to eject the respondent forcefully from the said plots.
3. Applicant/ defendant filed his written statement whereby denying the claim of the respondent/plaintiff in toto and further asserting that he was in possession of the said plots since the time of his father who used to run a cattle pan there and would pay bill against such usage to Baldia Town. And after his death, his mother and wife were residing in the said plots. They had applied several times to KMC for lease of the said plots and in this regard had paid a challan in the bank on 18.11.1998.
4. Record reflects that stay order was granted in favour of the respondent after the suit plots were visited by the Commissioner on court’s order who confirmed her possession over the plots in his report dated 29.03.200. But then during pendency of the suit, she was dispossessed and against which she filed the contempt application that was disposed of with direction to her to file amended plaint by including the relief of possession also. The applicant challenged such direction in civil revision 19/2002 before VI Additional District Judge Karachi West, who set aside the same vide order dated 09.01.2003 and observed that factum of alleged dispossession could be taken care of in the contempt application, thus there was no need to order for amending the plaint for the relief of possession and further observed that the contempt application was wrongly disposed of. Thereafter, accordingly the proceedings as were before disposal of contempt application stood revived. But after some time the respondent withdrew the contempt application and in its place filed a miscellaneous application for restoration of possession, which the trial court decided along with the main suit by way of final judgment whereby suit of the respondent was decreed with cost of Rs.50,000/- and applicant was directed to hand over possession of the suit plots to the respondent.
5. The case of the applicant, which his counsel vehemently argued, is based on the contention that the trial court without affording proper opportunity to him to lead evidence decided the case one-sidedly in haste which has resulted in miscarriage of justice. That he has been condemned unheard, which is violation of natural norms of justice. The reason the applicant has taken and relied on this ground is the fact that in the trial he was not able to lead evidence as his side was closed vide order dated 06.12.2010. And why he was not able to lead evidence is due to the fact that on his application under Order 7 Rule 10 CPC, which he had filed in the suit, the plaint was returned by the trial court to the respondent on the point of pecuniary jurisdiction vide order dated 25.10.2010. Meanwhile that order was challenged by the respondent in revision application where it was set aside and resultantly the suit again came on the file of the same court, where the matter proceeded after the applicant failed to appear and was decided against him. Now the contention of the applicant is that order of setting aside the plaint-return order was obtained ex parte without effecting service upon him and therefore he was not aware of the fact that the matter as a result of such order had been remanded to the trial court and this was the reason he could not re-appear before the trial court. That after remand of the case the trial court also did not take serious efforts to ensure effective service upon him and decided the case on his back without his evidence coming on record, which has resulted into miscarriage of justice. In order to appreciate his contention, I have gone through the entire record. It reflects that in the suit evidence of the respondent/plaintiff was concluded on 29.11.2000 and thereafter the matter was kept pending for evidence of the applicant but he on one pretext or the other successfully avoided to record his evidence for about 10 years until his side was closed on 23.12.2009 that was although reopened, but thereafter again he failed to lead evidence despite sufficient opportunities and instead on 25.01.2010 filed an application under Order 7 Rule 10 CPC for return of the plaint to the respondent on the point of pecuniary jurisdiction, which was allowed as stated above. Learned counsel for the respondent in the course of her arguments while rebutting the above contention of the applicant had pointed out that after remand of the case counsel of the applicant had appeared in the trial court on 14.12 2014 when he through an application sought to withdraw his power. But this was not allowed and merely the notice on the application was issued to the applicant, therefore, the plea of the applicant that he was not aware about remand of the case was entirely false and misleading. And, according to her, this position was in addition to usual modes of service that were adopted by the trial court for service upon the applicant. I myself have seen this application that is available at page No. 341 of the file and was filed by respondent’s counsel along with counter affidavit. Through this application learned counsel has merely informed the court that after the (remand) order dated 25.01.2010 applicant had taken case file from him and therefore necessary notice under Sindh Civil Court Rules be issued to him. Its mere perusal is sufficient to indicate that leaned counsel is not seeking withdrawal of his power but is communicating information of the case file being taken by the applicant after remand of the case, which itself establishes the fact that the applicant at the time of taking the file from his counsel came to know of pendency of the case before the trail court after its remand. More so, it would not be irrelevant to observe here that unless the court allows the counsel to withdraw his power on behalf of his client, he remains legally bound to appear for him and protect his interests in the proceedings. His failure to do so would not absolve him of his duty nor his client from taking the responsibility of an adversarial order passed in such circumstances against him. In the present case, from the above application it is obvious that applicant’s counsel had the knowledge of remand of the case, which also stood conveyed to the applicant when he allegedly took away case file from him after remand of the case, and although he was bound to continue in the case until and unless permission to withdraw his power was granted to him by the court, but he simply after submitting the application chose to remain absent. Therefore, in such circumstances no prejudice appears to have been caused to the applicant, if his side was closed vide order dated 06.12.2010 leading to a decision against him. Additionally it may be noted that trial court had resorted to closing side of the applicant after his failure to appear in response to service effected upon him through all modes of service. And this conduct of the applicant, in my estimation, would not be read in isolation of his failure to lead evidence for long 10 years, which itself was sufficient to debar him from participating further in the proceedings.
6. In addition to above learned counsel for the applicant also argued on merits of the case. His contention was that the applicant was admittedly in possession of the said plots since the time of his father, and he had also deposited the requisite fee-challan in the bank for lease of the suit plots in his favour. Insofar as possession of the suit plots by the applicant is concerned, both the courts have decided against him, their observation is to the effect that the possession was taken from the respondent during pendency of the suit, which is otherwise confirmed from the Commissioner’s report dated 29.03.2000 and in such circumstances it may be mentioned that the trial court was competent to mould the relief accordingly. There are lease deeds of the suit plots registered in respondent’s favour in October 1997 and against which the applicant has only Photostat copies of fee-challans of the suit plots which ostensibly were paid on 16.11.98 much after the execution of registered lease deeds in favour of the respondent. Their authenticity has not been established in the trial and therefore is not free from doubt. More so in law these bank-challans cannot be given effect over and above the registered lease deeds in favour of the respondent.
7. In view of above discussion, I find no material warranting interference in the impugned judgments. These are the reasons of my short order dated 19.09.2016 whereby this revision application was dismissed. There is no order as to costs as far as this revision application is concerned.
JUDGE