Order Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision No.S-02 of 2022

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE.

1. For orders on O/objection at flag-A.

2. For orders on CMA No.11/22

3. For orders on CMA No.367/22

4. For hearing of main case.

5. For orders on CMA No.12/22

Date of hearing.

24.03.2022

Mian Mumtaz Ali Rabbani Advocate for Applicants.

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ARSHAD HUSSAIN KHAN, J.- Through instant Civil Revision Application, the applicants have called in question the concurrent findings of facts of two courts below viz. (i) Judgment & Decree dated 27.08.2015 and 28.08.2015, passed by Senior Civil Judge, Mirpur Mathelo, in F.C Suit No.92 of 2012 whereby the suit of respondent/plaintiff was decreed and (ii) Judgment & Decree dated 12.10.2021, passed by IV-Additional District Judge, Mirpur Mathelo, in Civil Appeal No. 58 of 2015 whereby the appeal preferred by the present applicants/defendants against the judgment and decree, passed in FC Suit 92 of 2012 was dismissed.

2. Briefly, the facts giving rise to instant Revision Application are that respondent/plaintiff filed F.C suit No.92 of 2012 [Re-Manohar Lal v. Karim Bux & others] for recovery of amount of Rs.13,10,000/-against applicants /defendants, stating therein that his son, namely, Raj Kumar purchased 957 wheat bags from Sindh Government through his representative Kapeel Kumar son of Jaro Mal on 10.03.2011 for sending to Flour Mill Surjani Town PRC District Central Karachi through goods transport on 10.03.2011, vide Bilty No.797, however, said loaded vehicle did not reach at Imam Flour Mill Karachi. Thus, respondent along with clerk of said Mill, namely, Mahesh Kumar approached the applicants and informed them that the loaded bags of wheat have not been arrived at Imam Flour Mill Karachi to which applicants assured respondent that the said vehicle along with wheat will reach soon, however, in case of failure they will be responsible to pay the price of wheat bags to the respondent. However, despite lapse of sufficient period when the said wheat bags did not reach at the destination, the respondent approached applicants to resolve the matter but he kept them on hollow hopes, resultantly respondent lodged FIR at Police Station, Mirpur Mathelo. It has been stated that after registration of FIR applicants contacted with respondent to resolve the matter through arbitration. In pursuance thereof, an Iqrarnama was executed between applicants and respondent and the matter was decided with consent of both the parties through arbitration. Pursuant to the terms of the said decision the applicants had to pay the entire amount in installments. However when the applicants failed to pay the amount in terms of the arbitration award the plaintiff/respondent filed suit with prayer to pass judgment and decree as under;

i). To pass decree and judgment against the defendants directing them to pay Rs.13,10,000/-

ii). To award any other relief which this Court deems fit;

iii). To award the cost of suit.

3. The said suit, after a full-dressed trial, was decreed in favour of the plaintiff/respondent, vide judgment dated 27.08.2015. Relevant portion of the judgment is reproduced as under;

“In the light of my findings on issue No.1 to 4, I have come to the conclusion that plaintiff has established his claim that he has got loaded 957 wheat bags through Pak Bismillah goods transport company through vehicle TLB-580 on 10.3.2011 vide bilty No.979 but the same wheat has not been reached at the destination at Karachi and as per Iqrarnama dated 20.03.2012 Exh.40/B and faisla made between plaintiff and defendants reduced in writing on stamp papers, the defendants are liable to pay the amount of wheat of Rs.13,10,000/- to the plaintiff, thereby the plaintiff is entitled for the relief claimed. So far as the case law relied upon by the learned counsel for defendants reported in 1991 CL 712 Karachi and 2010 YLR1883, are concerned, which are pertaining to limitation point of filing present suit but according to issues framed dated 10.4.2013 no issue of limitation was framed, however I would like to make it clear that the bilty No.979 was issued by Pak-Bismillah Goods Transport Company on 10.3.2011 and later on the plaintiffs were requesting the defendants to pay the amount of wheat to them and such Iqrarnama Exh.40/B in faisla Exh.40/C were reduced in writing on 20.3.2012 and so far as the period of limitation for filing the suit of this nature is one year therefore, in my humble view the question of limitation for filing present suit does not arise and the case law relied upon by learned counsel for defendants are not applicable to the facts and circumstances of the present case in the light of my findings on issue No.1 to 4. The defendants are therefore, directed to make payment of amount of wheat of Rs.13, 10,000/- to plaintiff within one month. The issue No.5 is therefore, decided in affirmative.

Issue No.6. In view of the above findings on issue No.1 to 5, I hold that plaintiff has established his claim therefore, the suit of plaintiff is decreed, as prayed, with no order as to cost. Let such decree be prepared accordingly.

4. The said decree was subsequently, challenged by applicants/defendants in Civil Appeal No.58 of 2015, which was maintained by learned IV-Additional District Judge, Mirpur Mathelo, vide judgment dated 12.10.2021. Relevant portion whereof is reproduced as under;

“As per statement of learned of learned counsel for appellant that no document regarding wheat bags was produced by the Incharge Wheat Godown, Food Deptt: such as entry like truck number and name of driver with CNIC, find that Exh:47/A of the suit shows name of truck driver Muhammad Umer Khan and number TLB-580. Moreover, the bilty has been proved to be genuine at issued No.2 of the judgment.

In light of the above discussion, I find that the learned trial Court has passed judgment and decree legally and the same do not require any interference of this Court. The case law referred by learned counsel for the respondent is attracted with the facts and circumstances of the present case. I therefore, answer point No.1 in negative”.

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 applicants.

6. 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. 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.

7. No such infirmity has been shown by learned counsel for the applicants to call for interference in the impugned judgments 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. Reliance in this regard can be placed in the cases of Abdul Hakeem v. Habibullah and 11 others [1997 SCMR 1139], Anwar Zaman and 5 others v. Bahadur Sher and others [2000 SCMR 431] and Abdullah and others v. Fateh Muhammad and others [2002 CLC 1295].

8. 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 in limne.

J U D G E

Ihsan.