2019 PLP 3 (CLCN)

ZULFIQAR AHMAD KHAN, J.

None present for the applicant. Counsel for the respondent submits that the instant revision filed against concurrent findings of the Courts below, is pending since 2004 and on account of absence of applicants and their counsel, the instant revision is being lingering on. Learned counsel further submits that act of both the Courts below for accepting the claim of the respondent, is legal and does not call for any interference at revisional stage. The instant revision has been filed against concurrent findings of the Courts below having pre-emption matter and both the Courts below reached to the conclusion that the respondent has the rights as Shafi-e-Jar and Shafi-e-Khalit. I have had an opportunity to go through the judgments impugned and certain annexures provided by the applicant. It is matter of record that issue in dispute has properly been discussed by the Courts below and observations on the same are discussed by the trial Court in Issue Nos.2 and 6, which are reproduced hereunder;- "Both these issues are interconnected, to each other, therefore, I decide both issues together. To decide both issues the burden lies upon the plaintiff. He deposed in his deposition that his house is upper floor and constructed upon suit property (shop), the staircase of his house goes towards Eastern side of the suit property, the Chokat of the staircase is also attached with disputed, shop, water supply line, suit gas line and drainage line are passing through the wall of above suit property, hence, he has pre-emption right over the suit shop (suit property). PW-1 Ghulam Sarwar corroborated the version of the plaintiff and he deposed in his deposition that "I have seen the suit shop and also seen the house of plaintiff, the shop is in possession of Mr. Ghayasuddin Advocate, the staircase of the house of plaintiff attached with disputed shop so also suit gas, sewerage and water supply connection with plaintiff's house" The plaintiff produced true copy of City Survey Extract in his evidence (Ex.32) discloses that property C. S. No.630/A owned by Muhammad Akbar Khan and Muhammad Asghar Khan. There is a supporting evidence regarding staircase that same from C. S. No.630/1, (C. S. No.630/1 is ground floor and disputed suit property). In the light of above evidence I am of the humble opinion and view that plaintiff has right of Pre-emption as he is Shafi-e-Jar and is participator in immunities and appendages and has a right to discharge the water and is Shafi-e-Khalit, hence, both issues decided in affirmative. In fact it is admitted position that applicant has failed to prove that respondent has no right of pre-emption and such findings have also been expressed by appellate Court; which are reproduced as under;- "On perusal of record, the plaintiff/respondent claims to be owner of the house in this respect he has produced copy of City Survey Extract in his evidence vide Ex.32 disclosing that City Survey No.630-A was owned by him and his brother Muhammad Asghar Khan. In their supporting evidence regarding staircase that same are from C. S. No.630/1, C.S. No.630/1 and C. S. No.630/1 is ground floor and disputed property/shop. He has deposed in his deposition that his house is situated upper floor and constructed upon his property. The staircase of his house goes towards eastern side of the suit property. He has further stated that Choukhat of staircase is also attached with .the disputed shop, water supply line, Sui gas line and drainage line are passing through the wall of the above suit property hence, he has pre-emption right over the suit property. In support of his contention he has examined P.Ws Ghulam Sarwar and Muhammad Ayaz. He has stated that he has seen the suit property. Shop is in possession of Mr. Ghayasuddin Advocate. The staircase of the house of plaintiff attached with disputed shop so also sui gas, sewerage, water supply connection with plaintiff's house. The contention of plaintiff Muhammad Akbar in his statement are that on 8.7.1998 he was present his shop, P.W. Ghulam Sarwar Jamali was present at his shop and P.W. Muhammad Ayaz came and disclosed this fact that shop in case was sold out by defendant No.1 Muhammad Ehsan to Riaz Hussain, upon hearing this information he went to Ahsan the defendant No.1 to assert his right of pre-emption Shafi-e-Jar. In his support he has examined P.Ws Ghulam Sarwar and Muhammad Ayaz also who have supported version of plaintiff. The appellant is residing in C. S. No.F/636/1 and also other S.No. which is not close to suit property as no site inspection was made by the appellant inspite of that he has purchased the property. The respondent is prepared to pay same price of the shop to him. The appellant is not Shafi-e-jar and Shafi-e-Khalit, the immunities do not lie in his house. The respondent has made proper Talabs according to pre-emption law. In view of my above discussed, I am of the view that the learned trial judge has discussed issues properly. The learned advocate for the appellant has raised objection that trial Court has not discussed issue No.3 properly but in my opinion he has discussed issues Nos.1 and 2 which are bone of contention between the parties. There is no misreading of the evidence. He has appreciated evidence of both parties, evidence was not trust worthy. No illegality, has been committed by the learned Court, therefore, I maintain the impugned judgment and consequently appeal is not maintainable and stands dismissed. Being cognizant of the fact that in the exercise of revisional powers, it is not the duty of the High Court to enter into the merits of the evidence as it only has to see whether the requirements of the law have been duly and properly obeyed by the court whose order is the subject of the revision, and whether the irregularity as to failure or exercise of jurisdiction is such as to justify interference with the order. That's why if someone invokes the jurisdiction under section 115, C.P.C. he must show not only that a jurisdictional error has been committed by the court below, but also that the interests of justice call for interference by the High Court, as the powers of the court under section 115 of the Code are purely discretionary, which, are to be exercised in the interests of justice alone where the High Court could legitimately hold that the court below had exceeded its jurisdiction or had refrained from exercising a jurisdiction vested in it or it acted illegally or with material irregularity in the exercise of that jurisdiction, i.e. committed an error of procedure or of a mandatory procedure and that such an error had resulted in failure of justice. The words 'acted illegally' have been interpreted to mean acting in breach of some provisions of law and the words "acting with material irregularity" are interpreted to mean committing some error of procedure and in the course of proceedings, which is material in the sense that it may have affected the ultimate decision. A review of the judgments of the courts below shows that neither any of these courts decided the case perversely, nor it could be said that they acted illegally or with material irregularity in the exercise of their jurisdiction. Where a lower court passes an order in exercise of its Jurisdiction, the High Court is not to interfere with it in revision unless the order (being sought revision) if allowed to stand, is likely to occasion a failure of justice or cause an. irreparable injury, which is not the case at hand. In the absence of any defect in the concurrent findings of both the Courts below, interference of High Court in civil revision as held by apex Court in 2006 SCMR 50 amounts to improper exercise of revisional jurisdiction. In the given circumstances in the light of the above cited judgment of the apex Court and other judgments delivered on the same point being 2006 SCMR 1304 and 2010 CLC 528, the instant revision preferred against concurrent findings of the Courts below for the reasons detailed, merit no consideration and the same is accordingly dismissed. ZC/R-29/Sindh Revision dismissed.