ORDER
SHEET
IN THE
HIGH COURT OF SINDH BENCH AT SUKKUR
R. A. No. S – 26 & 27 of 2009
Date of hearing |
Order with signature
of Judge |
Hearing of cases (Priority)
1.
For hearing of CMA No.1588/2018
2.
For hearing of CMA No.1562/2018
3.
For hearing of CMA No.126/2009
4.
For hearing of main case
14.01.2019
Syed
Jaffar Ali Shah advocate for the applicants.
Mr.
Kalandar Bux Phulpoto advocate for respondent No.1.
Mr.
Ahmed Ali Shahani Assistant Advocate General Sindh.
.................
This Revision Application impugns the judgment
of the appellate Court passed on 05.01.2009 in Civil Appeal No.15/2001. The
Province of Sindh through District Attorney, Khairpur also filed an appeal
being aggrieved of the order of trial Court as Civil Appeal No.17/2001.
With the assistance of the learned counsel I
have perused the order of the appellate Court. Only last two pages are relevant
which were read over to me. None of the witnesses as cited by the plaintiff and
defendant / applicant and respondent before the trial Court were considered and
not even any document cited by these witnesses were remotely discussed. It is the
arbitrary discretion that has been exercised to upset the judgment of the trial
Court which decreed the suit. This judgment is absolutely silent as far as
Order 41 Rule 31 CPC is concerned. This could have been ignored, had the
appellate Court decided the appeal by giving sufficient reasons and answering
the questions of the applicant and the respondent, however, the reasoning is
absolutely silent. Mr. Kalandar Bux,
when enquired about the reasoning of the appellate Court’s judgment,
reluctantly concedes but submits that even the trial Court had travelled beyond
its limits and the suit of the applicant was decreed though the relevant law at
the time when the alleged land grant was made was not taken into consideration.
At the conclusion of their arguments, learned AAG also submits that the suit at the very outset is not
maintainable since the Government of Sindh has not been sued through any of its
functionary and is hit by Article 174 of the Constitution of Islamic Republic
of Pakistan, 1973 and no findings were given by any of the two courts below.
Since the applicant’s and the respondent’s
counsel have suggested to remand the case to the trial Court, I deem it
appropriate that learned AAG may take these
preliminary objections before the trial Court, who may frame this additional
issue before deciding the case on merit, yet again, if not framed earlier. The
two judgments, by consent, are set aside and the case is remanded to the trial
Court to decide it afresh after taking into consideration the evidence of the
parties and the law available at the time of alleged land grant and it’s application thereafter.
Both the Revision Applications stand disposed
of along with listed applications.
__________________
J U D G E
N.M.