IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision Appln.No.S-53 of 2018
Applicant : Abdul Rehman Magsi through his Attorney namely Mumtaz Magsi,
Through Mr. Abdul Hussain Junejo, Advocate
Date of hearing : 26.10.2018
Date of order : 29.10.2018
O R D E R
IRSHAD ALI SHAH, J.- The applicant by way of instant civil revision application has impugned judgment and decree dated 01.09.2018 of learned Additional District Judge-I, Shahdadkot, passed in Civil Appeal No.04/2016, whereby he has maintained order dated 15.03.2016, of learned Senior Civil Judge, Shahdadkot, whereby he has rejected the plaint in F.C.Suit No.33/2015 “Re.Abdul Rehman Vs. Sub Division Officer Irrigation Shahdadkot and others”.
2. The facts in brief necessary for disposal of instant civil revision application are that as per the applicant, he and other Khatedars were allowed to install a temporary pipe at Water Course No.33 R-Ex-Tanwri Distry at RD No.96000, out of Survey No.23 of Deh Sadiq, Tapo Hazar Wah, Taluka Qubo Saeed Khan, with consent of other Khatedars of the area, such pipe according to him is now being threatened to be removed by the official respondents on account of non-payment of illegal gratification. By pleading so, the applicant sought for the following relief;
a) To, declare that the action of the defendant No.1 to 3, and 5 to 6 of removing the temporary pipe for the part command area of Water Course 33 R-Ex-Tanwari Distry, at RD No.96000 with discharge 0.67 Cusecs with 6 into 0.5 LH, is illegal, Nul and Void.
b) To restrain the defendants No.1 to 3, and 5 to 6 by way of Mandatory injunction to remove the Pipe from the Suit land being the spinal cord of the plaintiff and his family members, and further to misuse their good offices against to the plaintiff and his family members.
3. The plaint of the suit on filing of an application u/o 7 rule 11 CPC by the respondents was rejected by learned trial Judge vide order dated 16.03.2016, such rejection of the plaint was maintained by learned Appellate Court vide judgment and decree dated 01.09.2018, those have been impugned before this Court by the applicant by way of instant civil revision application, as stated above.
4. It is contended by learned counsel for the applicant that the plaint was not liable to its rejection, as triable issues were available therein. By contending so, he sought for reversal of order and judgment/decree of learned trial and Appellate Courts with direction to learned trial Court to proceed with the matter further in accordance with law.
5. I have considered the above arguments and perused the record.
6. As per plaint, the applicant was allowed to install a pipe on temporary basis to irrigate his lands subject to observance of codal formalities. There is no disclosure in the plaint as to where any codal formality was observed by the applicant, necessary to make the above said pipe operational. No notice apparently has been served upon the applicant by any of the official respondent for removing the above said pipe. The applicant straight away has sought for declaration to the effect that the action of the official respondents to remove the above said pipe is illegal, null and void. By seeking such declaration, the applicant obviously is intending to continue with his temporary arrangement without observing the codal formalities. In that situation, the learned trial and Appellate Courts were right to reject the plaint of the suit of the applicant by making a conclusion that it is not disclosing the cause of action, by resorting to provision of clause (a) to order 7 rule 11 CPC. By doing so, the learned trial and Appellate Courts have committed no wrong or jurisdictional mistake, to be made right by this Court by way of instant civil revision application; it is dismissed in limine, with no order as to costs.
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