ORDER SHEET
IN THE HIGH COURT
OF SINDH BENCH AT SUKKUR
C. P. No. D – 2194
of 2017
|
Date of hearing |
Order
with signature of Judge |
Hearing
of case (priority)
1. For hearing of CMA No.14620/2017 (S/A)
2. For hearing of main case
(Notice issued to respondents and advocate)
01.11.2018
Mr. Safdar Ali Bhatti, Advocate for the petitioners.
Mr. Javed Ahmed Kubar, Advocate for
respondents No.1 to 8.
Mr. Mehboob Ali Wassan, Assistant
Advocate General Sindh.
.-.-.-.-.-.-.-.-.-.-
Comments have been
filed by respondents No.1 to 8 and 11, which are taken on record.
This Constitution
Petition is arising out of orders passed by the trial Court as well as
appellate Court. Petitioners, who were defendants in the suit, aggrieved of the
order passed by the trial Court whereby the application under Order VII Rule
11, CPC, was dismissed, followed by the dismissal of the revision application
by the appellate Court. Earlier, an application under Order VII Rule 11, CPC,
was dismissed on the ground that it was mixed question of law and facts. After
the dismissal, the issues were framed and evidence of the plaintiffs was
recorded. In consideration of the evidence i.e. examination-in-chief and cross
examination, petitioners / defendants again filed an application under Order
VII Rule 11, CPC, on the strength of the evidence, however, without application
of mind, it was again dismissed by observing that the matter should be decided
on merit and technicalities should be avoided. The trial Court further observed
on a subsequent application filed after recording of evidence that it was a
mixed question of law and facts, which required evidence, and after recording
of evidence it will be determined. There are no findings of the trial Court as
to whether the evidence of the plaintiffs / respondents was not enough to
decide the controversy, as raised in the application under Order VII Rule 11,
CPC. The order was assailed in the revision application and the appellate Court
too found that the evidence of the defendants / petitioners is yet to be recorded.
We heard the
learned counsel and perused the record.
Insofar as the
application under Order VII Rule 11, CPC is concerned, it is for the trial
Court and appellate Court to see the contents of the plaint, and, if it was on
a mixed question of law and facts, it was the burden upon the plaintiffs /
respondents which was allegedly discharged when an examination-in-chief and
cross examination was recorded. The controversy regarding maintainability of
the suit as well as it being barred by time, could have been easily concluded
on the strength of the evidence of the plaintiffs / respondents, which they
have failed.
Without commenting
about the evidence that came on record via examination-in-chief and cross of
respondents as to whether, suit was barred by time or not maintainable, we deem
it appropriate that the trial Court and appellate Court since have not passed
the orders in consideration of evidence of plaintiffs (examination-in-chief and
cross), the case is remanded to the trial Court. The two orders of the trial
Court passed on the applications under Order VII Rule 11, CPC, and order passed
in the revision application, are set aside. The issues regarding
maintainability and suit being barred by time shall be heard and decided as the
preliminary issues on the strength of evidence of the plaintiffs / respondents
i.e. examination-in-chief and cross examination, available on record whereafter if required, the final judgment after recording
of the evidence of the defendants / petitioners be also passed, preferably
within six (06) weeks from today.
The petition
stands disposed of along with the
listed application, in the above terms.
J U D G
E
J U D G
E
Abdul Basit