IN THE HIGH COURT OF SINDH

CIRCUIT COURT, LARKANA

 

Present:

Shamsuddin Abbasi, J.

Agha Faisal, J.

 

CP.No.D-267 of 2023          :           Khush Muhammad Vs.

Makhdoom Nadeem Ahmed &Others

 

For the Petitioner                 :           Abdul Rehman Bhutto, Advocate.

 

For the Respondents          :           Mr. Aijaz Ali Kalhoro, Advocate.

 

For Official Respondents   :           Mr. Abdul Hamid Bhurgri, Add. A.G, Sindh

                                                           

Dates of hearing                  :           08.05.2024

 

Date of announcement      :           08.05.2024

 

ORDER

 

Agha Faisal, J. The plaint in F.C.Suit No.40 of 2017 was rejected and the operative part of the Order dated 5th December, 2017 is reproduced herein below:

           

"After hearing the learned counsels for respective parties and have gone through the averments made in the plaint, I am of the view that the learned Counsel for defendant No.1 in his objections raised plea of fraud and managed documents by the plaintiffs: this plea of the defendant is to be proved after recording of evidence, and it cannot be decided summarily in application U/O VII Rule 11 CPC, in this regard I am guided by the principle laid down by the Honourable Supreme court of Pakistan, in case of Muhammad Altaf and others Versus abdur Rehman Khan and others reported in 2001 SCMR 953. The second contention regarding the maintainability of the suit, is concerned, in  terms of section 53 of the West Pakistan Land Revenue Act 1967, which is relevant in the instant suit because section 53 of West Pakistan Land Revenue Act, 1967, suggests that the a person feeling himself aggrieved by an entry of the revenue record about his right which he was possess can initiate the matter before the Civil Court, it confers a right in favour of aggrieved persons to have recourse to the Civil Court for declaration of his right U/S 42 of the Specific Relief Act. The learned Counsel for defendant No.1, in his objection on application U/O VII rule 11 CPC, has not denied the possession of suit land by plaintiffs for about more than 35 years. Moreover, the long standing entries also lies in favour of plaintiffs. Therefore, the application U/O VII Rule 11 CPC merits no consideration, stands dismissed. I have great honour and respect for the case law cited supra by learned Counsel for defendant No.1, but these are distinguishable from the suit in hand.

                       

            Civil Revision No.02/2018 was preferred there against and the same was decided vide order 17.05.2018. Operative part is reproduced herein below:

           

"Heard, learned Counsel for the parties and also perused the record. It is a well settled law that while deciding the application under order VII Rule 11 CPC the contents of the Plaint are to be considered as true and correct. It appears form perusal of record that order of Deputy Commissioner, Larkana was challenged before Commissioner, who transferred the same to Additional Commissioner Larkana for disposal according to Law. After hearing the parties, the Additional Commissioner allowed the appeal and cancelled the entry No.63 and its subsequent entries vide order dated 09.05.2017. The plaintiffs/private respondents were dissatisfied with the order of Additional Commissioner Larkana they ought to have file the revision U/s. 164 of the Land Revenue Act before the Board of Revenue but they did not avail the above remedy and filed the F.C Suit No.40/2017 before the Court of learned Senior Civil Judge, Ratodero, while bypassing the highest forum in Revenue hierarchy without any justification.

 

            As already discussed above, it is matter of record that the plaintiffs/private respondents instead of exhausting all remedies available under the provisions of Sindh Land Revenue Act, the plaintiffs/private respondents filed the Civil Suit for seeking the declaration against order passed by Additional Commissioner Larkana to be null and void. So far as Section 53 of the Land Revenue Act is concerned, it applies in cases wherein the parties feels themselves aggrieved by an entry in record of rights or in periodical record as to right of which he is in possession, whereas in the case in hand the plaintiffs/private respondents challenged the order of cancellation of entry passed by Additional Commissioner, Larkana. For the sake of ready reference the Section 53 of Sindh Land Revenue Act, 1967 is reproduced herein under:

 

            53. Suit for declaratory decrees by persons aggrieved by an entry in a record:- If any persons considers himself aggrieved by an entry in a record of rights as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877.

 

            Apart from above, the provisions of section 11 of Sindh Revenue Jurisdiction Act, 1876 also bars the jurisdiction of Civil Court to entertain any suit, as admittedly the plaintiffs/private respondents have not questioned the order of the Additional Commissioner, Larkana before proper Revenue Forum, the relevant Section 11 of the Sindh Revenue Jurisdiction Act, 1876 is reproduced hereunder:

 

            11. Suits not to be entertained unless plaintiff has exhausted right of appeal. No Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue-officer unless the plaintiff first proves that, previously to bring his suit he has presented all such appeal allowed by law for the time being in force as, within period of limitation for bringing such suits, it was possible to present.

 

            In this regard I further place my reliance on the case of Zahid Hussain and 10 others Vs. Shamasuddin and 9 others reported in 2014 CLC 1334 (Sindh).

 

            In view of the above discussion, I have come to the conclusion that learned trial court has committed illegality while passing the impugned order, as the suit filed by plaintiffs/private respondents is barred by law as discussed above, hence the order of leaned trial court stand set-aside and the revision application is allowed. Consequently, the plaint of the plaintiff stand rejected under order VII Rule 11 CPC, with no order as to cost".

 

            The present writ petition assails the order in revision.

 

It is observed that the order in revision is in fact an order of rejection of plaint. It is noted that this petition remains pending since 2018 and while rejection of a plaint does not preclude a claimant to file afresh, in the appropriate forum, we have not been assisted with any information regarding the petitioner having done so. Learned counsel also made no endeavor to shed any light upon why the impugned order ought not to have been assailed per Order XLIII CPC.

 

It is settled law that the ambit of a writ petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further legal recourse is provided or precluded by the law[1], and is restricted inter alia to appreciate whether any manifest illegality is apparent from the order impugned.

 

While the petitioners’ counsel made no endeavor to identify any jurisdictional / patent infirmity in the impugned order, it is imperative to eschew such deliberation presently and advert to Section 115(4) CPC, which precludes the agitation of such matters before the High Court.

 

Section 115 CPC provides for the remedy of revision and subsection (2) thereof empowers the District Court to exercise powers of revision in respect of any case decided by a Court subordinate thereto. Subsection (4) thereof clearly explicates that no proceedings in revision shall be entertained by the High Court against an order made under sub­section referred to supra by the District Court. Prima facie there is a statutory bar upon further escalation in the High Court of a matter determined per the aforementioned provision. The Impugned Order has admittedly been rendered per section 115(2) CPC and petitioner’s counsel has remained unable to advance any argument as to how this petition could be entertained in view of the statutory bar contained in section 115(4) CPC. It is settled law that Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision[2]. 

 

The Supreme Court observed in Arif Fareed[3] that the objective of Article 199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case. However, it is emphasized that the High Court, in its capacity under Article 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts. The judgment in Hamad Hasan[4] deprecated such a tendency in no uncertain words and maintained that it was impermissible for Constitutional jurisdiction to be substituted for appellate / revisionary jurisdiction.

 

No jurisdictional defect has been demonstrated by the learned counsel in the impugned order, therefore, no case for invocation of writ jurisdiction is made out. Even otherwise, invocation of writ jurisdiction in view of the bar contained in section 115(4) CPC could not be justified.

 

In view hereof, this petition is found to be misconceived, hence, dismissed along with all pending applications.

           

 

                                                                                    Judge

 

Judge


[1]Per Ijaz ul Ahsan J in Gul Taiz Khan Marwat vs. Registrar Peshawar High Court reported as PLD 2021 Supreme Court 391.

[2] President All Pakistan Women Association vs. Muhammad Akbar Awan reported as 2020 SCMR 260.

[3]Per Amin ud Din Ahmed J in Arif Fareed vs. Bibi Sara & Others reported as 2023 SCMR 413.

[4]Per Ayesha A. Malik J in M. Hamad Hassan v. Mst. Isma Bukhari & Others reported as 2023 SCMR 1434.