IN THE HIGH COURT OF SINDH

CIRCUIT COURT,LARKANA.

Civil Revision S-77 of 2021:          The Province of Sindh & Others

                                                            vs. Sagar Kumar & Others

For the Applicants               :           Mr. Abdul Hamid Bhurgri, A.A.G

For the Respondents          :           Mr. Vinod Kumar G. Jessrani, Advocate

                                                            Mr. Javed Ahmed Soomro, Advocate

Date of hearing                    :           03.02.2022

Date of announcement      :           03.02.2022.

O R D E R

Agha Faisal, J.  (1) Deferred.  (2) Granted; subject to all exceptions. (4) Repeat notice to unrepresented respondents. (3) The judgment was rendered by the Court of learned Senior Civil Judge, Kashmore @Kandhkot in F.C Suit No.121 of 2021 on 22.3.2021.  Appeal was filed there against before the learned District Judge, Kashmore @Kandhkot and the same was dismissed on account of limitation vide order dated 25.06.2021. The revision assails the judgments primarily on the premise   that the purported liability of private defendants / respondents has been erroneously attributed to the Province.  However, in so far as the present application  for interim relief is concerned, learned AAG draws attention to the impugned appellate order, whereby the learned Judge in the first instance considered the appeal pending there before as a revision and states that Section 5 of the Limitation Act does not apply thereto. Secondly it is pointed out that while the alleged delay may only be of two months however, the learned Appellate Court has erroneously considered it as being three months.  Finally it is submitted that while the learned Appellate Court has stated that the law governing condonation of limitation, it has omitted to mention / discuss / determine the grounds invoked by the appellant.

2,         Respondents' learned counsel have argued against the grant of interim relief and articulated that there are concurrent findings against the applicants and no interference is merited in such regard.

3.         Heard and perused. The infirmities pointed out by the learned A.A.G   appear from a bare perusal of impugned appellate order, as identified supra.   Whether or not the appeal had merit was a question before learned Appellate Court, as was the issue of limitation. However it is considered view of this Court that the narration provided by the learned Appellate Court in the impugned appellate order does not prima facie appear to bulwark the conclusion drawn. Admittedly, the Court was seized of an appeal and not a revision and there could be no cavil to the invocation of section 5 of the Limitation Act. Addressing the argument of learned counsel for the respondents, regarding there being two concurrent findings of fact, it is observed that while judgment of learned trial Court is a finding of fact, the appellate order could not be considered as the same.

4.         In view of foregoing, it is observed that the applicants have made out prima facie case for grant of interim relief; shown the apprehension of irreparable loss; and demonstrated the favorable tilt of balance of convenience.  Application under consideration is hereby allowed. Operation of the impugned order / judgment is hereby suspended. Adjourned to 24.02.2022. 

JUDGE