IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

 

Revision Application No.S-57 of 2019

 

 

Applicant:                                          Amir Hussain through Mr. Abdul Sattar Mahesar, Advocate.

 

Respondent No.1:                              Jamaluddin through Mr. Saeed Ahmed, Advocate

 

Respondents No.2 to 5:                     Mr. Mehboob Ali Wassan, AAG

Date of hearing:                                 29.11.2021.

Date of decision:                                29.11.2021.

 

 

O R D E R

 

Zulfiqar Ali Sangi, J:              Through this Cr. Revision Application, the Applicant has assailed order dated 23.02.2019 (impugned herein) passed by learned Sessions Judge, Khairpur, wherein Civil Appeal filed under Section 96 Cr.P.C preferred against the order dated 11.09.2018, passed by learned 3rd Senior Civil Judge, Khairpur, in F.C. Suit No.29 of 2018, was dismissed on the ground that appeal preferred by the applicant against impugned order dated 11.09.2018, passed by learned lower Court, whereby plaint of suit was rejected, was hopelessly time barred.  

 

2.                 Succinct facts of the case are that applicant purchased agricultural land on dated 25.02.2008, bearing S. No.20/1-25 (0-8), 217/2-8 (0-11), 324/4-10 (1-2 ½ ), 24/1/2-12(0-9 ½), 329/4-30 (0-19), 88/5-5 (1-11-5) total area about 4-12-5 from defendant No.1 in consideration of Rs.824000/- and the plaintiff paid above consideration amount in presence of witnesses namely Loung Khan and Haji Ahmed Ali and the possession of the said property has been handed over to the applicant/plaintiff and since then he is enjoying possession and its cultivation so also paying land revenue assessment to the government. Such agreement was also reduced in writing between the parties in presence of above witnesses. It was decided at the time of execution of such agreement of sale that the registered sale deed will be executed in between the parties and the defendant will be bound to execute the registered sale deed with the plaintiff and also sale certificate will be obtained by the defendant and expenditure of Sub-Registrar will be borne by plaintiff/applicant. After lapse of approximately 10 years the defendant who is close relative of the plaintiff, not executed the registered sale deed in favour of the applicant and kept the applicant on false hopes even the plaintiff himself and through nekmards various time approached to defendant/Respondent No.1 for execution of sale deed but the same could not executed due to malafide intention and ulterior motives of Respondent No.1. The applicant the filed civil suit for “Declaration, Permanent Injunction and Specific Performance”.    

 

3.                 Learned counsel for the applicant, at the very outset, contended that impugned order passed by learned District Judge, Khairpur is against the law, facts and equity; that impugned order is not based upon plausible or cogent reasons; that impugned order is also based upon presumptions and assumptions; that suit of the applicant was maintainable according to law and valuable rights are involved therein but the plea was not considered by learned trial Court as well learned Appellate Court and passed the impugned orders in hurriedly manners without applying judicious mind; that the matter requires its decision on merits rather not on technicalities; that the applicant was seriously ill since 26.09.2018 and due to his illness, he could not file appeal within time and such fact has also brought before learned Appellate Court but the same could not be considered. In the last, he prayed that instant revision application may be allowed and the impugned orders passed by learned lower courts may be set-aside and the case may be remanded to trial court for decision on merits after recording evidence and giving opportunity of hearing to the parties. 

 

4.                 Learned Counsel representing the Respondent No.1 contended that suit for declaration, permanent injunction and specific performance was not maintainable as the alleged transaction shown therein was effected in the year, 2008; that Respondent No.1 neither offered for sale to agreement nor accepted such offer from applicant’s side; that alleged sale agreement dated 25.02.2008 is managed, false and forged; that the contents of such agreement are not in accordance with law; that suit land has already been transferred through registered sale deed in favour of Mst. Sahib Khatoon, Abdul Jabbar and others and presently Respondent No.1 is not owner of such land. He lastly submits that since concurrent findings are against the applicant, therefore, no interference is required and the instant revision application is liable to be dismissed as the same having no merits for consideration.  

 

5.                 Learned AAG, while adopting the arguments of learned Counsel for the Respondent No.1, submitted that applicant has failed to point out any illegality or infirmity in the impugned orders passed by both learned lower Courts, hence the same are liable to be maintained and the instant revision application may be dismissed. 

 

6.                 I have heard arguments of learned counsel for the parties and have done through the available record with their able assistance.    

7.                 From perusal of impugned order dated 11.09.2018, it reflects that the suit is barred by section 42 Specific Relief Act, 1877 as the alleged agreement was executed in the year, 2008; however suit has been filed in the year, 2018; besides such deed/agreement as allegedly executed in between the parties does not contain any description regarding execution of registered sale deed. It shall be advantageous to reproduce penultimate paragraph of impugned order dated 11.09.2018 as under:-

“In view of above facts and circumstances, it appears that on one hand the suit is barred by section 42 Specific Relief Act, 1877 and on other hand deed/agreement doesn’t contain any description regarding execution of registered sale deed, hence there remains no question of the performance of contract for execution of registered sale deed by Defendant No.1, therefore the suit is not maintainable according to law. In case of Hawaldar Sarwar Khan through General Attorney vs. Province of Sindh Revenue Department through Deputy Commissioner Shikarpur and five others reported in 1992 CLC 282 (Karachi), the Honourable High Court of Sindh has held that Court was duty bound to bury incompetent plaint in its infancy. It is also held by Hon’ble Supreme Court of Pakistan in case of Shafi Ahmed Zaidi through legal heirs v. Malik Hassan Ali Kah (Moin) through legal heirs reported in (2002 SCMR 338) that requirement of law is that incompetent suit should be buried at its inception and it is in the interest of litigating parties and Judicial institutions itself, it would save time and expenses of parties and the court would get time to devote it for the genuine cause. Accordingly, the plaint of instant suit is hereby rejected. The parties shall bear their own cost”.   

   

 

8.                 Moreover, it is also reflected from the impugned order dated 23.02.2019 passed by the Senior Civil Judge-III, Khairpur that the appeal preferred against the impugned order dated 11.09.2018 was not filed within prescribed period as provided by the law and in support of delay caused in filing of appeal, applicant could not be satisfactorily replied; however he submitted that due to his illness he could not filed appeal within specified period; Applicant further asserted in his appeal that his valuable rights are involved, therefore, such delay may be condoned,  applicant not succeeded and the appeal was dismissed, being time barred. For the sake of convenience, paragraph-4 of the impugned order of the appellate court is reproduced as under:-

“From perusal of the record, it appears that appellants/plaintiff claims that he was suffering from epileptic fit due to which he could not file appeal. In this regard he has submitted medical certificate issued by Dr. Inayat Ali Memon which shows that appellant/plaintiff was under treatment since 27.09.2018. From perusal of record, it appears that order rejecting the plaint was passed on 11.09.2018 by the court of learned Senior Civil Judge-III, Khairpur while the appellant has applied for true copy of order on 24.09.2018 which was prepared and delivered to him on 27.09.2018. The appellant has failed to explain as to why soon after passing order appellant/plaintiff did not prefer appeal. The delay of each day is to be explained by the appellant, because once the limitation starts running then it cannot be stopped. The appellant has failed to furnish sufficient cause for condoning the delay. It is held by the Hon’ble Supreme Court of Pakistan in the case of World call Telecom Limited versus Pakistan Telecommunication Authority through Chairman, Islamabad, reported in (2011 SCMR 959) that “so far the limitation concerned it creates right in favour of the other side and law always favours those who are vigilant and not those who are negligent in pursuing their remedy.”      

 

9.                It may be clarified here that filing of appeal within limitation is mandatory from the delivery of judgment/order, while insufficiency of documents filed with an appeal due to some reasons, have got a different concept and effect. Due to the non-availability of required but not mandatory document, one can obtain a period from the office/court, after filing of an appeal within the prescribed period of limitation because from the date of announcement of the judgment/order, limitation period having commenced, no interruption could stop the limitation running. However the period spent for obtaining copy of impugned judgment/order could be exempted. In the present case it appears that order rejecting the plaint was passed on 11.09.2018 by the court of learned Senior Civil Judge-III, Khairpur while the applicant has applied for true copy of order on 24.09.2018 which was prepared and delivered to him on 27.09.2018. The applicant has failed to explain as to why soon after passing order he not preferred the appeal before District Court and the same was preferred in the month of February 2019.

 

10.               From the arguments advanced by learned Counsel for the applicant in support of his contention as well as perusal of record does not invite any interference of this Court as learned Counsel has miserably failed to convince the Court regarding any illegality or infirmity caused by the two Courts below while passing the impugned orders. Ground regarding illness as asserted by applicant before learned District Judge also not appears to be plausible. Resultantly, the orders of the court below are maintained whilst dismissing this revision application.

 

11.              These are the reasons of my short order dated: 29-11-2021.

 

 

Judge