Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 13 of 2006

R. A. No. S – 14 of 2006

R. A. No. S – 15 of 2006

Date of hearing: 10.09.2018.

Date of judgment: 28.09.2018.

Mr. T. David Lawrence, Advocate assisted by Mr. Muhammad Tahir Qureshi, Advocate for the applicants.

Mr. Mukesh Kumar G. Karara, Advocate assisted by Mr. Sajjad Muhammad Zangejo, Advocate for the respondents.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – This bunch of revision applications have a long history. The present revision applications not only impugn the judgment and decree of two Courts below but also the jurisdiction of the trial Court while entertaining the application under Section 12(2), CPC.

2. The suit bearing No.22/1989 was filed by one Shankar and others, and it was subsequently assigned new numbers as 34/1993, 03/1998 and 31/2000. The suit was filed for possession, mesne profits and perpetual injunction against the respondents Ranjho and others. The subject matter of the suit is a property originally owned by one Allah Dino, who was survived by four sons and a daughter such as, Punhoon, Revo, Peero, Koonjo and Mst. Sugni.

3. Punhoon, the elder brother expired and First Class Suit No.76/1975 was filed by Revo and several others against the sons, wife and daughter of Punhoon. The plaintiff Revo in Suit No.76/1975, on the basis of a will, claimed the subject property to be theirs. The said suit was dismissed under Order 17 Rule 3, CPC, on 27.04.1982. Revo then filed two subsequent suits bearing Nos.68/1995 and 12/1996, wherein the issues were framed, however, the plaints in these suits were rejected.

4. The present Suit No.22/1989, out of which these proceedings have arisen, was filed by Shankar S/o Karmo, Chanesar S/o Karmo, Manohar S/o Karmo and Shambo S/o Karmo. Karmo is the son of Revo, and since all were minors, the suit was filed by Revo, as being their grandfather. Revo has already lost the litigation in terms of Suits Nos.76/1975, 68/1995 and 12/1996 with reference to the subject property on the basis of an alleged will. The suit was preliminary decreed.

5. The appeal bearing No.75/1993 was preferred by the defendants of the said suit, which was dismissed.

6. Being aggrieved of the order, the respondents preferred an application under Section 12(2), CPC, on acquiring knowledge of said collusive proceedings. The application was preferred by respondents 4 to 7. The application was allowed. The office submission notes on the application under Section 12(2), CPC, reflects that it was a preliminary decree that was passed, whereas, for mesne profits, Rs.500/- were deposited as Commissioner’s fee. The application under Section 12(2), CPC, was allowed on 02.12.2003, and the judgment and decree were set aside, and on the application, the applicants / respondents 4 to 7 were impleaded as necessary and proper party.

7. The said order was not challenged by the applicants nor any objection to the extent of jurisdiction of the trial Court was taken as the final judgment and decree were in fact assailed before the appellate Court, which dismissed the appeal, and it is one of the contention of the counsel now, that the application under Section 12(2), CPC, should have been preferred before the appellate Court. Respondents 4 to 7 also filed parallel suit for cancellation of sale deed executed on the basis of will as 42/2000.

8. The evidence was recorded and the suits Nos.31/2000 and 42/2000 were consolidated. Suit No.31/2000 of Revo’s grandsons was dismissed, whereas, Suit No.42/2000 filed by the respondents was decreed. The trial Court though decreed the suit in favour of the respondents 4 to 7, however, it is claimed that issue No.3 was decided against them, which relates to the cancellation of the sale deed allegedly executed on the basis of a will. Aggrieved of it, one set of parties Shankar and others filed Civil Appeal No.62/2004, whereas, another set of appellants Chandoo and others filed Civil Appeal No.57/2004. The third appeal No.63/2004 was filed by Revo. All three appeals were consolidated and a common judgment was passed disposing of three appeals, and decided the fate of the sale deed on the basis of previous litigation as an independent appeal was preferred by Chandoo and others challenging the findings of issue No.3 despite the fact that the judgment and decree were in their favour. The said order is challenged by Shankar and others in Revision Application No. S-13/2006, and by Revo and others in Revision Applications Nos. S-14/2006 and S-15/2006.

9. On 24.04.2009, while hearing these connected revision applications, this Court was pleased to allow the revision applications and set aside the judgment and decree passed by the appellate Court below. The said order passed in these revision applications was assailed before Honourable Supreme Court in Civil Petitions Nos.564-K to 566-K, which petition after being converted into appeal was allowed and the case was remanded to this Court for expeditious disposal. The case was remanded to this Court on the reasoning that the respondents i.e. Chandoo and others were not heard.

10. I have heard the learned counsel and perused the material available on record. Points that need consideration are (1) whether in the given circumstances where objection to the jurisdiction was not taken before the trial Court as well as the appellate Court, could it be taken at this forum in revisional jurisdiction; (2) whether the declaration in view of facts and circumstances could be granted to respondents 4 to 7 i.e. Chandoo, Jalal, Dano, Dargahi.

11. The dispute regarding the subject land started by Revo when he first filed a suit as Suit No.76/1975 on the basis of alleged will. The prayer made in the aforesaid suit is as under:

a) That it be declared that the plaintiff No.1 is owner of the land shown in schedule ‘A’ above on the basis of will, plaintiffs No.2 and 3 are owners of the land shown in schedule ‘B’ above on the basis of will, plaintiffs No.6 and 7 are owners of the land shown in schedule ‘C’ above, and the plaintiff No.4 as well as plaintiffs No.2 and 3 are owners of the house shown in schedule ‘D’ above.

b) That permanent injunction be issued against the defendants restraining them from interfering with the title and possession of plaintiffs on the above land, directly or indirectly by themselves or through their men or agents.

c) Costs of the suit be borne by the defendants No.1 to 5.

d) Any other relief.

12. The Court framed the following nine (09) issues:

1. Whether suit is not in proper form?

2. Whether suit is bad for multifariousness?

3. Whether less Court fee has been paid?

4. Whether will dated 2-9-1972 was actually executed by Punhoon? If so whether the same is valid and legal document and what is its effect?

5. Whether plaintiffs are occupying suit property on the basis of will?

6. Who are the heirs of Punhoon and what are their shares in suit property?

7. Whether entries suit property originally belonged to Allah Dino father of Punhoon?

8. Whether the plaintiffs are entitled to the relief claimed?

9. What should the decree be?

13. This suit was dismissed under Order XVII Rule 3, CPC, on 27.04.1982. Revo then filed two subsequent suits bearing No.68/1995 and 12/1996, wherein again the issues were framed and the plaints were rejected. The present suit, out of which these proceedings have arisen, was filed by Shankar, Chanesar, Manahor and Shambo, all sons of Karmo. Karmo is the son of Revo, meaning thereby that this suit was filed by grandsons of Revo, who had already exhausted the remedy on the basis of alleged will. Surprisingly, this suit was filed by grandfather Revo on behalf of these four minors. This Suit No.22/1989 given new No.34/1993 was decreed on 30.11.1993.

14. For the reasons which have not been difficult to understand, a collusive appeal, to put the final nail in the coffin was filed by the so called defendants in the suit as Civil Appeal No.75/1993, which appeal was also dismissed with cost of Rs.2,000/-. An application for passing final decree was filed on 04.08.1996 and it is at this stage when an application under Section 12(2), CPC, was preferred by respondents 4 to 7.

15. Mr. Lawrence, learned counsel appearing for the applicants, has conceded that they have not contested this application under Section 12(2), CPC, on the ground of jurisdiction, rather contested the application on merits. This application was allowed on 02.12.2003, and the parties were directed to record their evidence in three (03) months.

16. Suit No.22/1989 which was assigned fresh number as 34/1993 and then lastly as 31/2000 was tagged with Suit No.42/2000. Suit No.42/2000 was filed by respondents 4 to 7. The consolidated suit was then disposed of by judgment dated 31.03.2004 in terms whereof the suit filed by Shankar and others having new No.31/2000 was dismissed, whereas, suit filed by respondents 4 to 7 as 42/2000 was decreed. However, on account of an issue of cancellation of sale deed, respondents 4 to 7 preferred an appeal; appeal is also preferred by the applicants i.e. Civil Appeals Nos.57/2004 and 62/2004, respectively. The appeal filed by applicants is also devoid of the ground of jurisdiction insofar as an application under Section 12(2), CPC, is concerned.

17. The two aforesaid appeals were disposed of by a common judgment dated 11.10.2005 and decree was drawn on 21.10.2005. The said appeal clarified that the Court was empowered to mold the relief just to save multiplicity of proceedings, and the appeal filed by Chandoo which is in continuation of a civil suit was treated as an application under Section 12(2), CPC. The title of Revo, which claimed to have been acquired by virtue of alleged will, was declared as null and void, and the sale deed was cancelled. The Suit No.42/2000 was decreed and the possession of respondents 4 to 7 was protected.

18. Under the given set of facts and circumstances, Revo during his lifetime has already exhausted the remedy as far as his exclusive title and entitlement to the land is concerned. He, as a guardian, filed suit on behalf of his grandsons when the property was not devolved amongst them.

19. No doubt, the jurisdiction to decide an application under Section 12(2), CPC, vest with the Court who last passed an order substantially deciding the controversy, however, in the instant case, such objection was neither taken before the trial Court nor before the appellate Court. Another distinguishing feature is that a final decree was yet to be passed in the matter and the application was filed by a party having interest in the property and who were not arrayed as defendants. Thus a final decree for the benefit of all persons entitled under the law, was yet to pass. Hence, I am not inclined to oust respondents 4 to 7 at this revisional stage as no defence pertaining to jurisdiction was taken against the application under Section 12(2), CPC, that should have been taken at the earliest and secondly, final judgment and decree was yet to pass by the trial Court and then applicants of an application were considered as necessary and property party.

20. This matter was remanded by the Hon’ble Supreme Court after setting aside the order passed by this Court earlier in these Revision applications. The said order is no more in the field. The findings under challenge are concurrent, and this revisional jurisdiction is limited in the sense that an erroneous order or an order without jurisdiction has to be established. Since it was never the case of the applicants before the trial Court as well as the appellate Court that the jurisdiction was not exercised or it exercised jurisdiction not vested in it, therefore, at this revisional stage a belated plea cannot be allowed to be taken. Before the Court of first instance, an objection of this nature can be taken at any stage, and the advantage of this earlier ‘objection’ and the wisdom behind is that on return of subject lis, the litigant may avail its remedy.

21. I am of the view that the applicant lost earlier in Suit No.76/1975 and then again in Suit No.68/1995 and 12/1996, thus, cannot be given a license to mislead the Court again and again which is nothing but an abuse of the process of Court. Those proceedings in the shape of Suit No.68/1995 and 12/1996 were nothing but collusive, hence, I do not find any error in the concurrent findings of two Courts below.

22. Resultantly, these revision applications stand dismissed.

J U D G E

Abdul Basit