THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Order Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision No.S-45 of 2019

DATE OF

HEARING

ORDER WITH SIGNATURE OF JUDGE.

1. For hearing of main case.

2. For orders on CMA No.205/19

Date of hearing.

14.04.2022

Mr. Sikandar Ali Junejo Advocate for Applicant.

Mr. Tarique G. Hanif Mangi Advocate for respondents.

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ARSHAD HUSSAIN KHAN, J.- Through instant Civil Revision Application, the applicant has called in question the concurrent findings of facts of two courts below viz. (i) Order dated 15.05.2017 passed by IIIrd Senior Civil Judge, Sukkur, in F.C Suit No.272 of 2017 whereby the plaint of plaintiff (hereinafter called as appellant) was rejected under Order VII Rule 11 CPC and (ii) Judgment and decree dated 27.11.2018 passed by III-Additional District Judge, Sukkur in Civil Appeal No.109 of 2017 whereby the appeal preferred by the present applicant/plaintiff against the order passed in F.C Suit No.272 of 2017 was dismissed.

2. Briefly, the facts giving rise to instant Revision Application are that applicant/plaintiff filed F.C suit No.272 of 2017 [Re-Ameenullah v. Mujeebullah & others] for possession through pre-emption and permanent injunction. It is averred that applicant/plaintiff was co-sharer of suit property and he had right of pre-emption as Shafi-e-Jar and Shafi-e-Khalit. On 16.09.2016, he came to know about sale of property before his witnesses, on which he made first demand to respondent Nos.4 and 5 (purchasers of suit property) by exercising right of pre-emption but respondents refused. Then plaintiff made second demand before his witnesses Javed Ahmed and Muhammad Imran but respondents No.4 to 5 again refused. Para No.10 of the plaint shows that, after this exercise, applicant/plaintiff approached Sub-Registrar and obtained certified true copy of Sale-Deed. According to para No.12 of plaint, cause of action accrued to plaintiff on 16.11.2016 plaintiff has prayed for directions to defendant to receive sale consideration of Rs.500,000/- from him and get his name substituted in respect of suit property. He has further prayed for grant of permanent injunction. Such plaint was rejected.

3. The plaintiff of the plaintiff/applicant was rejected u/o VII Rule 11 CPC vide order dated 15.05.2017. Relevant portion of the order is reproduced as under;

“Para-9 of the plaint does disclose that there had been specific reference to the first demand. Nevertheless plaintiff voices that the plaintiff came to know about the sale on 16.04.2016 at 09:00 p.m. and without loss of time he made Talab-i-Muwasibat. Plaintiff has produced certified copy of the registered sale-deed obtained by him and stamp paper on which endorsement of the certified copy is there has been produced by plaintiff on 14.11.2016. This document has been produced by plaintiff himself. This shows that the plaintiff was in the knowledge of sale on 14.11.2016 when he purchased the same and, therefore, making Talab-i-Muwasibat on 16.11.2016 was not with promptitude and in such circumstances obvious result would be failure of the suit as being incompetent.

In such a situation, the plaint is rejected.

4. The said orders was subsequently, challenged by plaintiff/applicant in Civil Appeal No.109 of 2017, and appeal of applicant/plaintiff was dismissed by learned III-Additional District Judge, Sukkur vide judgment dated 27.11.2018. Relevant portion whereof is reproduced as under;

“I have considered the reason of rejection of plaint and I have also analyzed the explanation given by learned Advocate for appellant in opposition to that reason. It is settled by now that Talab-e-Muwsabat is a jumping demand and it should be made immediately upon the receipt of information and any delay in making this demand defeats the right of pre-emption. One may refer to D.F. Mulla’s ‘Principles of Mahomedan Law’ where (in section 236) he defines Talab-e-Muwsabat as under;

“236. Demands for pre-emption- No person is entitled to the right of pre-emption unless.

(1) He has declared his intention to assert the right immediately on receiving information of the same. This formally is called Talb-i-Mowasibat (literally, demand of jumping, that is, immediately demand);”

It is to be noted from the above section that a claim of pre-emption must be made immediately upon learning of the sale. Plaintiff has himself produced a document (stamp paper) which is stating that plaintiff was in knowledge of sale on 14.11.2016, on which date, he purchased the stamp paper but he remained silent for two days and made first demand on 16.11.2016 at 09:00 p.m. This is showing that he has not made the immediate demand, as required by law and in such circumstances appellant/ plaintiff has lost his right of Shaffa (pre-emption). Reference can be made to the case of Subhanuddin v. Pir Ghulam (PLD 2015 SC 69), on his point I have analyzed the explanation given by the learned advocate for appellant regarding the stamp paper and the date (14.11.2016) mentioned on it but I do not consider that explanation satisfactory as it appears an afterthought and an attempt to fill up a lacuna. I have respectfully gone through the case law relied by learned Advocate for appellant but in my opinion, same is not attracting on circumstances of present case and it has distinguishable circumstances from the matter in hand.

Above discussion has brought me to the conclusion that trial Court has rightly rejected the plaint and I see no illegality in the impugned order. Accordingly, the points No.i and ii are answered in negative.

Point No.iii. Therefore, keeping forth the above discussion, instant appeal is dismissed for the reasons discussed above”.

5. Learned counsel for the applicants while reiterating the facts has contended that orders impugned herein are not sustainable in law and facts both. It is contended that the learned courts below while passing the impugned orders have failed to consider the evidence available on the record, which fully support the stance of the applicant.

6. Conversely, counsel for respondent stated that both the decision of courts below are just and proper do not require any interfere by this Court.

7. The provisions of Section 115, C.P.C. envisage interference by the High Court only on account of jurisdiction alone, i.e. if a court subordinate to the High Court has exercised a jurisdiction not vested in it, or has irregularly exercised a jurisdiction vested in it or has not exercised such jurisdiction so vested in it. It is settled law that when a court has jurisdiction to decide a question it has jurisdiction to decide it rightly or wrongly both in fact and law. The mere fact that its decision is erroneous in law does not amount to illegal or irregular exercise of jurisdiction. Even otherwise, both the Court has discussed on the relevant point “that plaintiff came to know about the sale on 16.04.2016 at 09:00 a.m. and without loss of time he made Talab-i-Muwasibat. Plaintiff has produced certified copy of the registered sale-deed obtained by him and stamp paper on which endorsement of the certified copy is there has been produced by plaintiff on 14.11.2016. This document has been produced by plaintiff himself. This shows that the plaintiff was in the knowledge of sale on 14.11.2016 when he purchased the same and, therefore, making Talab-i-Muwasibat on 16.11.2016 was not with promptitude”. For an applicant to succeed under Section 115, C.P.C., he has to show that there is some material defect in procedure or disregard of some rule of law in the manner of reaching that wrong decision. In other words, there must be some distinction between jurisdiction to try and determine a matter and erroneous action of a court in exercise of such jurisdiction. It is a settled principle of law that erroneous conclusion of law or fact can be corrected in appeal and not by way of a revision, which primarily deals with the question of jurisdiction of a court i.e. whether a court has exercised a jurisdiction not vested in it or has not exercised a jurisdiction vested in it or has exercised a jurisdiction vested in it illegally or with material irregularity.

8. No such infirmity has been shown by learned counsel for the applicant to call for interference in the impugned order/judgment by this Court. It is well settled that if no error of law or defect in procedure had been committed in coming to a finding of fact, the High Court cannot substitute such findings merely because a different findings could be given. It is also well settled law that concurrent findings of the two courts below are not to be interfered in revisional jurisdiction, unless extra ordinary circumstances are demonstrated by the applicants. It is also trite law that a revisional court does not sit in reappraisal of the evidence and is distinguishable from the court of appellate jurisdiction.

9. The upshot of the above discussion is that no illegality, irregularity or jurisdictional error in the concurrent findings of the lower appellate courts could have been pointed out by learned counsel for the applicants. Resultantly, the civil revision in hand, being devoid of any force and merit, is dismissed.

J U D G E

Ihsan.