ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Rev. Application No.S-66 of 2015
|
Date |
Order with signature of Judge |
Dated of hearing: 09-10-2017
Mr. Shafqat Rahim Rahjput, Advocate for the applicants
Mr. Muhammad Rehan Khan Durrani, Advocate for respondent
No.1
Mr. Zulfiqar Ali Naich, AAG
O R D E R
Zulfiqar Ahmad Khan J. Controversy in the case at hand came before
court when the applicant filed an FC Suit No.398/1994 for Declaration and
Permanent Injunction against (1) Province of Sindh, (2) Chief Minister
Government of Sindh, (3) Colonization Officer Guddu Barrage Sukkur, (4) Assistant Colonization Officer
Guddu Barrage Mirpur Mathelo and (5) Mukhtiarkar (Revenue) Mirpur Mathelo in
the Court of Senior Civil Judge Mirpur Mathelo, on the ground that he was
granted an agricultural land bearing Survey Nos.392 (04-34) and 393 (03-00)
acres totaling an area of (07-34) acres situated in Deh Wah Bakro, Taluka
Mirpur Mathelo, District Ghotki by the Colonization Officer Guddu Barrage Sukkur
(respondent No.3) on the basis of Harap since Kharif 1992-93. Subsequently
there to the said land was mutated in his name vide entry No.129 dated
25.9.1993. However, thereafter it was alleged that the Chief Minister Sindh in
his letter No.782 dated 29.5.1994 cancelled the said land of the applicant and
so also other grants without due notice and hearing which resulted in filing of
the above mentioned civil suit.
2. After
service, the defendants No.3 and 4 jointly filed their statements wherein they
admitted the grant of land in question to the applicant, however stated that
the said land like others was cancelled by the Chief Minister of Sindh through
a general order as the same were granted in violation of terms and conditions
of Land Grant Policy 1989. None of the other respondents submitted their
written statements.
3. During the
pendency of the suit current respondent No.1 through Incharge Major Officer
Commending Musaddiq Faruq Fateh made an application u/o 1 Rule 10 CPC dated
17.4.1994 to be added as an intervener. It however could be seen that no
attachment were made to the instant application u/o 1 Rule 10 CPC nor any
authorization of the signatory was provided. A counter thereto was filed by the
present applicant. However the said application made u/o 1 Rule 10 CPC was
dismissed by the trial court vide order dated 19.10.1995.
4. Be that
as it may, the suit itself was decided by the judgment dated 31.10.1995 and
decree dated 05.11.1995. The present respondents No.2 to 6 preferred a civil
appeal No.310/1995 against the above judgment and decree before the District
Judge Ghotki alongwith stay application which were transferred to Additional
District Judge-II Mirpur Mathelo, however by order dated 30.3.1998 the said appeal
was dismissed on account of non-prosecution.
It is pertinent to mention that no appeal was preferred by the respondent No.1
against dismissal of application u/o 1 Rule 10 CPC. Notwithstanding herewith
the respondent No.1 then preferred an appeal bearing Civil Appeal No.05/1996
dated 23.1.1996. The said appeal was however dismissed on account of
non-prosecution on 16.2.1998. However an application u/s 151 CPC dated
14.3.1998 for the restoration was filed on which an order was passed on
01.6.1998 where the appeal was restored. The appeal was heard in due course and
vide judgment dated 08.10.1998 and decree dated 10.10.1998 the learned
Additional District Judge Mirpur Mathelo set-aside the judgment and decree of
the trial court with directions to reconsider the present respondent No.1 for
joining as a party to the suit and decide the matter afresh after framing the
proper issues. Against the said judgment and decree of the appellate court, the
applicant filed a revision application bearing No.71/1998 before this bench
which after hearing both the parties decided the same through judgment dated
11.9.2014. Since important aspect as to the merit of inclusion of the
respondent No.1 as a party were covered in the said judgment, last two
paragraphs of the said judgment are reproduced hereunder:-
“I have heard all the learned Counsel
at considerable length and have perused the record. It is an admitted position
that no appeal was preferred by the respondent No.1 against the dismissal of
their application U/o 1 Rule 10 CPC. However they filed an appeal against the
Judgment and decree dated 31.10.1995 and 05.1.1995 passed in F.C. Suit
No.398/1994. Here a question would arise as to how the respondent No.1 could
prefer an appeal in respect of an order in which they were not a party. It is
an admitted position that they were neither Decree holder nor judgment-debtor
in the said case, hence what was their capacity or locus standi to file an
appeal, and it has not been satisfactorily explained and neither was into
considered by the appellate Court. A perusal of the order passed by the
appellate Court clearly reveals that the appellate Court while passing the
order dated 08.10.1998 has not considered the core issue that how a person who
was not a party in a case can file an appeal, when admittedly he was neither a
judgment-debtor nor a Decree-holder. Though it could be said that an appeal
could be filed by an aggrieved person but it could not be denied that no appeal
whatsoever has been preferred by the respondent No.1 in respect of the
dismissal of their application U/o 1 Rule 10 CPC, hence so far as their
becoming a party in the said suit is concerned, the same in my view has
attained finality and how that aspect has been ignored by the appellate has not
been satisfactorily explained by the Counsel representing the State.
In my view, the learned appellate
Court has been swayed-away by the facts that since the respondent No.1 was an
aggrieved person, hence they were a necessary party to the case, if for
argument sake it is assumed that they were a necessary party in the case but
the question is what precluded them from filing an appeal against the dismissal
order regarding their becoming a party. Even at a belated stage also no appeal
was filed by them against the said dismissal. Thus in my view proper course has
not been adopted by the appellate Court while deciding the issue. I therefore, remand this matter back to
the appellate Court by giving specific directions to decide the matter by
considering the facts as enumerated below:-
(i) Admittedly no appeal was filed by the
respondent No.1 against the dismissal of their application U/o 1 Rule 10 C.P.C.
(ii) That respondent No.1 was neither a
Judgment-debtor nor a Decree-holder in the judgment and decree passed by the
trial Court. Hence under what capacity they have filed an appeal before the
appellate Court.
The above matter should preferably be
decided within a period of 03 months from the date of receipt of this order. The
instant civil revision application is disposed of in the above terms.”
5. The case
was then heard afresh by the Court of Additional District Judge-III Mirpur
Mathelo in Civil Appeal No.05/1996 wherein vide judgment dated 10.8.2015 the
said Court not only allowed application u/o1 Rule 10 CPC of the respondent No.1
rather in the same breath also ordered the Federation of Pakistan to be added
as a party by holding that the said inclusion were denied by the trial court for
malafide reasons. Against the out come of the said impugned judgment this
revision application has been preferred.
6. Mr.
Shafqat Rahim Rajput learned counsel for the applicant raised a number of
grounds as to the legitimacy of the out come of the appellate court which could
be summarized as under:-
1. That the learned appellate court has failed to consider that
the appeal was not maintainable as before filing third party appeal prior
permission which is mandatory was not obtained by the appellate court.
2. That the learned appellate court has failed to consider that
order on application under order 1 Rule 10 CPC was passed on 19.10.1995 and the
learned trial court has passed judgment on 31.10.1995 and that the door of the
respondent was technically shut down by the trial court after dismissal of the
application under Order 1 Rule 10 CPC, which the said respondent did not
challenge.
3. That the appellant/respondent has not applied for the certified
true copy of the order of the application under order 1 Rule 10 CPC, nor the
appellant/respondent has moved any application before learned trial court that
they intended to file appeal against the order.
4. That the learned appellate court has exercised the power under
section 115 CPC and joined the appellant/respondent as a party in the suit as a
defendant No.6 and 7 without any application made under Order 1 Rue 10 CPC.
5. That the learned appellate Court has failed to consider that
the impugned judgment was passed on 31.10.1995 decree was prepared on
05.11.1995 and appeal was preferred on 23.1.1996 with delay of 49 days and the
learned appellate court has ignored this fact by assumed that appeal was within
time.
6. That the learned appellate Court has failed to consider that
the number of civil appeal is 05/1996 and how it is possible that the said
appeal was filed in 1995 because it is settled law that as soon as any matter
come in the court, the number of the case or appeal is allotted at once without
any delay.
7. That the learned appellate court has failed to consider that
the contention of applicant that decree is not annexed with memo of appeal has
been raised before Honourable High Court and same was mentioned in the grounds
of the civil revision No.71/1998 and same was not waved, the observation of the
learned appellate court is against the real fact of the matter.
8. That apart from this, the appellant/respondent No.1 application
under order 1 rule 10 CPC was rejected by the trial Court on 19.10.1995 for
impleading as a party and the respondent No.1 has not challenged the same
before next higher forum/Court, which amounts that order of rejecting the said
application becomes final.
9. That if the appellant/respondent No.6 was aggrieved by
rejecting the application U/O 1 Rule 10 CPC the remedy to challenge the same
U/S 105 CPC or recalling the same was there, but he has not availed the same
and now that cannot be challenged in appeal U/S 96 CPC.
10. That the appellant/respondent No.1 has taken plea of
misrepresentation/fraud in obtaining decree and without prejudiced if it was
so, the remedy of filing application under section 12(2) CPC was available
which the respondent No.1/appellant has failed to avail and now he cannot take
rescue of filing third party appeal.
11. That without prejudiced, the learned appellate court has only set
aside the judgment/decree of the Trial Court, but no order is passed on
rejecting of application under order 1 rule 10 CPC and without passing any
order on that application, the respondent No.1 cannot be impleaded or
considered as defendant, on the contrary the learned trial Court has exercised
the revisional jurisdiction under section 115 CPC which has not conferred upon
him.
12. That apart from this, the learned Appellate Court has failed to
consider that the application under order 1 rule 10 CPC was filed without any
supporting documents showing any entitlement, hence in absence of any such
document, how the trial court can pass any order for impleading as
party/defendant.
13. That without prejudiced if the appellate court has considered the
averments of application under order 1 Rule 10 CPC only with intention to set
the same aside, then it is hopelessly time barred, as order was passed on
19.10.1995 and appeal was filed on 23.01.1996.
14. That the learned Court has completely failed to follow the
direction of Honourable High Court, as the matter was remanded and passed
Judgment and Decree without any documentary evidence or legal facts of the
case.
15. That the application under
order 1 rule 10 CPC was filed by the person who was not authorized, nor the
appeal is filed by person so authorized under order XXVIII void.”
7. In support of his contention he
placed reliance on the cases of H.M.Saya & Co, Karachi Vs. Wazir Ali
Industries Ltd., Karchi and another (PLD
1969 Supreme Court 65), O.B.E. Insurance
Limited Vs. The Trustees of the
8. Through
the first cited case (PLD 1969 SC 65) it could be seen that the Apex court with
regard to the question of a stranger to a suit when filing an appeal held that
such a stranger is not prohibited by the CPC from filing an appeal from an
order passed therein, however noted that no express provision permitting the
same is also prescribed. It was also held that the Court ought not to act on
the principle that every procedure is to be taken as prohibited unless it is
expressly provided for. In the concluding para however it is directed that in
such situation where the decree or order appealed from adversely affects a
person, he should be permitted to challenge the same in appeal even if he was
not made a party to the original suit or proceeding, provided however the
proper course would be that such a person obtains leave from the court of
appeal for doing so. In the second case (1992 CLC 804) the same contentions
were also relied upon. The reference made to the case (2001 SCMR 1680) was that
u/o 1 Rule 1 & 3 CPC “party” means the person whose name is appearing on
the record of the suit as plaintiff or as defendant. A cumulative reading of
the dictum laid down through the above cited cases is that while there is no
express provision permitting a stranger to prefer an appeal, however he can
only do so after obtaining a leave to appeal from the appellate court.
9. The
learned counsel for the applicant also submitted that after having the
application u/o 1 Rule 10 CPC dismissed, the respondent No.1 abandoned the suit
and parted with it by not challenging the order passed by the trial court
dismissing Order 1 Rule 10 CPC application and only woke up after the judgment
and decree were passed, therefore for all practical purposes became stranger to
the controversy at hand thus was not competent to file an appeal in the matter
in which he was neither a plaintiff nor a
defendant and where he also failed to obtain a leave to appeal from the
appellate court. He pointed out that judgment passed by Honourable Bench of
this Court in Civil revision No.71/1998 portion of which has been reproduced in
the foregoing very clearly questioned the locus standi of the respondent No.1
and laid down parameters for the appellate court to dilate upon, which specific
questions are not fully answered in the impugned judgment. The reference made
to the above cited case (PLD 1969 SC 69) in the impugned judgment is faulty and
as mentioned above, the
10. Learned
counsel for the respondent No.1 while challenged the attack on the limitation,
contended that the trial court showed unnecessary haste in deciding the Order 1
Rule 10 CPC application. He further submitted that the person who moved the
said application did not require any authorization and the time period between
dismissal order on order 1 Rule 10 CPC application was very close to the final
judgment and decree passed by the trial court, therefore the respondent choose to
file an appeal against the judgment and decree rather than impugning the Order
1 Rule 10 CPC application dismissal order dated 19.10.1995. Learned counsel
also placed reliance on the supra (PLD 1969 SC 65) as well as 2010 SCMR 115
case however half heartedly admitted that no leave to appeal was obtained.
While discussion has already been made
on the above referred case (PLD 1969 SC
65) a review of the judgment cited as (2010 SCMR 115) reveals that the issues
in the said case were totally different, so are the facts of the case at hand;
therefore no influence could be taken from the said judgment.
11. Learned AAG
supported the contention of learned counsel for the respondent No.1 and submitted
that issues were framed prior to making decision on application u/o 1 Rule 10
CPC whish shows malafide on the part of the trial court as it took six months
to pass orders on application u/o 1 Rule 10 CPC but within a short interval
from the date of that order rendered the judgment and decree leaving the
resident No.1 with shock and awe.
12. Heard the
counsel , reviewed the material
on record. It is evident from the above disclosure that the respondent No.1
having lost his chance to enter into the battle through the dismissal order on Order
1 Rule 10 CPC application abandoned the battle field by not choosing to challenge
the said dismissal. It only woke up
when the court had made its final declaration through the judgment and decree.
At that juncture when he became an alien to the litigation it only had narrow passage
to intervene through filing an appeal under section 96. However this course clearly
required him to seek a leave granting order before it could have preferred an
appeal. It is exactly for these reasons that my leaned brother through his
judgment dated 11.9.2014 in Civil Revision No.71/1998 posed those challenges to
the very foundation of respondent’s bonafide and capacity to file an appeal. It
is surprising to see in the impugned judgment that time and again malafide of
the trial court has been aired, however no cogent reasons have been given as to
(a) the merit of the respondent No.1 to prefer an appeal and (b) on what ground
the Federation of Pakistan was added without any application made in this
regard. To me the finding given in the impugned judgment are contrary to the
established principle of law, evasive as well fall shot of the minimum legal standards
on which a trial court’s order could be based. To me the ground agitated by the
learned counsel for the applicant stands at a very high pedestal as compared to
the very answer given by the other side. Scope of review u/s 115 CPC is purely
discretionary and not to be exercised where ends of justice are required to be
met, but not otherwise. No relief could be granted u/s 115 CPC in aid of
injustice or in favour of retention of ill gotten gains. Before me is a clear
case where respondent No.1 failed to show vigilance in proceedings with the
case at trial stage. It was by its own admission that a conscious decision was taken
by it to not to challenge the order passed on application made u/o 1 Rule 10
CPC which drove him away from the battle field and made him a mere spectator,
which impropriety of the said respondent
can not be rectified at this stage.
13. It was for
these reasons that through my short order announced in the open court I allowed
the instant revision application and set aside the impugned judgment and decree.
JUDGE
Suleman Khan/PA