IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision Application No.S-27 of 2021.

Date	Order with signature of Judge

1. For hearing of main case.

2. For hearing of CMA No. 208/2021.

17-01-2022.

Mr.Safdar Ali Bhatti, advocate for applicant.

Mr. Abdul Sattar Mahesar, advocate for respondent No. 2.

Mr. Noor Hassan Malik, Assistant Advocate General, Sindh.

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O R D E R.

Amjad Ali Sahito, J.- This Civil Revision Application filed by the applicant impugned the judgment & decree dated 23-12-2020 and 04-01-2021 respectively passed by learned III-Additional District Judge Khairpur in Civil Appeal No. 38/2020 (Re. Waheed Ali Vs. District Food Controller/DFC & others) whereby the Civil Appeal No.38 of 2020 filed by the applicant was dismissed and order dated 14-03-2020 amounting to decree passed by learned IInd Senior Civil Judge Khairpur in F.C Suit No. Nil of 2020 Re. Waheed Ali Goapng Vs. District Food Controller & others is upheld, whereby the plaint of the suit was rejected u/o 7 Rule 11 CPC without its admission and notice to other side, hence this revision.

2. Precisely the facts are that appellant namely being plaintiff filed suit for declaration, Mandatory & Permanent Injunctions against the above named respondents before the learned trial Court with following prayers.

I. To declare that five cheques of Bank Al-Habibi Limited, Branch Khairpur bearing cheque Nos. 10210372 to 1021376 of account No. 01143098100290901 and six cheques of National Bank of Pakistan Kotdiji Branch bearing Cheque numbers 1). 89504527, 2). 89504528, 3). 89504529, 4). 89504530, 5). 89504531, 6). 89504532 of Account No. 0135004118935937 of NBP Kotdiji Branch were missed/stolen from the office of plaintiff.

II. To declare that as said cheques do no bears the official stamp, which is required to be affixed on cheques for proper presentation/encashment from concerned Bank, have no values in the eye of law being not issued competently to anyone regarding any lawful consideration.

III. To declare that the plaintiff lawfully got stopped payment of cheques mentioned in prayer clause (i) and no one claim the same to be issued the same in their names.

IV. To declare that there is nothing is outstanding against the plaintiff after his final payment made on 14-05-2019 to food department, as plaintiff had not purchased any further wheat from Food Department.

V. Through mandatory injunction, this Court may direct the defendants Nos. 1 & 2 to return the above same cheques to plaintiff.

VI. T grant permanent injunction in favour of the plaintiff thereby restraining the defendants, their successors, their agents or anybody else acting on their behalf or claiming through them from claiming any amount through above mentioned cheques and may further be direct the police department to no register any case on the basis of the cheques mentioned above.

VII. To grant the costs of the suit any other relief which this Court may deems fit and proper in the circumstance of the suit.

3. On presentation of suit, the learned trial Court without admitting it or issuing notices to other side, rejected the plaint by exercising the powers under 7 Rule 11 CPC, hence files the appeal before the appellate Court, which was admitted and notices were issued o the respondents and respondent No.2 appeared through his counsel, while learned DDA filed memo of appearance on behalf of respondents Nos. 1 & 3.

4. Learned counsel for the applicant submits that applicant filed suit for Declaration, Mandatory & Permanent Injunction; that on presentation of the said suit before the learned trial Court the plaint was rejected with observation that suit is barred by u/s 42 of Specific Relief Act; impugned judgment, decree and order passed by learned appellate Court as well as trial Court are illegal, against the law, facts and have passed without considering the facts of the case, even it was not knowledge in the applicant/plaintiff about passing of the same; that suit of the applicant does not hit by any corner of VII Rule 11 CPC and it is settled principal of law that if any single prayer is maintainable in the suit, the plaint cannot be rejected; that applicant is owner of M/S Gopang Flour Mill & Ice Factory Kot Baglow, who purchased who purchased wheat from the District Food Controller for the season 2017-18, who clear his dues on 14-05-2019 and such statement is available on record; that applicant was account holder in NBP Kodiji Branch, who was outside of the city, due to which appellant always used to keep sign some cheques, which could be cashed after affixing of stamp lying in his office; that some of the cheques were misplaced, which does not bear stamp of his office; such application was also moved by the applicant to the concerned Bank authorities as well as SHO concerned; that controversy between the parties cannot be decided without framing of issues arising out of the pleadings of the parties and recording evidence. He lastly prayed for setting aside of impugned judgment and decree passed by learned appellant Court and the order passed by learned trial Court.

5. Learned counsel for the respondent No.2 supports the impugned order passed by learned trial Court as well as judgment and decree passed by learned appellate Court; that applicant being owner of M/S Gopang Flour Mill & Ice Factory Kot Banglow had purchased wheat from the respondents and in lieu of same, issued cheques in question, such agreement was also reduced in writing between the parties; that applicant has failed to make payment to the respondents, on the contrary applicant filed the suit against them; as per list issued by District Food Controller, Khairpur the M/S Gopang Flour Mill & Ice Factory Kot Banglow under the ownership of applicant has been shown as non-functional so also mark-up amount Rs. 37,598,738.22/- is pending against Mill Management before the NAB authorities at Sukkur; that summary suit regarding disputed amount is pending adjudication between the parties in which the applicant has been shown as defendant, inspite of that he is avoiding to pursue that suit and filed the subsequent suit due to malafide intention and ulterior motives, he therefore prayed for dismissal of instant Civil Revision Application.

6. Learned AAG, Sindh adopted the same arguments advanced by learned counsel for the respondent No.2 and he also seeks dismissal of instant Civil Revision Application.

7. I have heard learned counsel for the parties and have gone through the material available on record.

8. Admittedly the applicant is owner of M/S Gopang Flour Mill & Ice Factory, Kot Banglo. District Food Controller Khairpur issued a list of Flour Mills (Functional) in District Khairpur, which reveals, M/S Gopang Flour Mill & Ice Factory, Kot Banglo is shown as “non-functional” and further mark-up amount Rs. 37,598,736.22/- is pending against Mill Management, for which an enquiry is pending before NAB Authorities at Sukkur. The respondent No.2 has also filed Summary Suit regarding disputed amount against the applicant, which is also pending adjudication before the trial Court, but he is avoiding to pursue that suit and filed the subsequent suit, which was dismissed u/o 7 Rule 11 CPC. The applicant has preferred an appeal before the appellate Court against the dismissal of his suit, which has also been dismissed vide judgment and decree dated 23-12-2020 and 04-01-2021 respectively by learned III-Additional District Judge Khairpur. It has been held in the case of Ghous Bux Vs. Muhammad Suleman and others (2001 MLD 1159), which reads as under:-

-----O.VII,R.11---Plaint, rejection of---Relief not possible to be granted—Effect---Where the suit was meritless and ultimately it was not possible to grant relief sought or no fruitful result thereof was expected to come out, provision of O.VII, R.11 C.P.C would come into play.

9. Moreover, perusal of record further reflects that the applicant has admitted in Para No.8 of the plaint of the suit that on coming to know regarding missing/steel of cheques, he initially tried to trace out the same, but failed, hence he filed an application regarding missing of the cheques with the concerned Bank on 20-05-2019 and affidavit dated 24-05-2019 as well as application dated 20-05-2019 to SHO PS Kotdiji in writing and also got published such notice in newspaper, which was published on 23-05-2019. From the above averments, it is crystal clear that neither the date of missing of the cheques is shown by the applicant nor he has disclosed the names of witnesses anywhere in the plaint, but he tried to build a scenario which he may use in his favour at the time of its requirement. Learned counsel for the respondent No.2 along with objections/counter affidavit files cheque dated 23-07-2019 along with its memo showing the account closed, but on its back side in Sindhi language, it is endorsed by one Lal Chand who is shown to be the Manager of Gopang flour mill being authorised by the applicant, disclosed that arm of the applicant is injured, hence he/Lal Chand has taken responsibility on behalf of the applicant that after payment of amount, they got returned the issued cheques from respondent No.2 Hanifullah Solangi, which clearly shows that applicant is playing with technicalities and not approach the Court with clean hands.

10. In view of above, the instant Civil Revision Application is dismissed being meritless. These are the reasons of short order dated 17-01-2022.

Judge

Nasim/P.A