2014 PLP 1417 (MLD)

SALAHUDDIN PANHWAR, J.

The applicant has assailed the Judgment and decree dated 27th January 2007, passed by learned Additional District Judge, Shandadpur in Civil Appeal No.18 of 2007 "Re-Nawabzada Mohammad Zaman Khan Vs Municipal Committee, Shandadpur" whereby dismissing the appeal of the petitioner filed against judgment and decree dated 30-8-2006 and 9-9-2006 ,respectively passed by learned Senior Civil Judge, Shandadpur.

2. The precise relevant facts of the case are that applicant filed F.C. Suit No.73 of 1998, for Declaration, Mesne Profit and Permanent Injunction; wherein claimed to be owner of land bearing R.S.No.393/A having an area of 0.12 acres situated in Deh Shandadpur and that such entry stood entered in his name. It is further case of the petitioner that respondent illegally occupied said land; established a park with name of "Jinnah park" so also constructed shops thereon and rented out to different persons; he made number of approaches to the respondent through its Chairman / Administrator for possession but in vain, so he filed a suit against respondent and Province of Sindh but could not pursue the same which ended in disposal without merits. As per pleading of the petitioner, he issued a legal notice through his advocate, same was received by respondent but no heed was given so he filed the suit.

3. It is revealed that in response to the summons, issued by the trial court, the respondent caused appearance and filed written statement; wherein denying claims of the applicant with specific stand that Jinnah Park is established on R.S.No.394/A and not on R.S.No.393/A. It is further reflected that respondent filed amended written statement; wherein claimed to have acquired 11 Ghuntas from suit land on payment of Rs.385 which amount was paid through cheque dated 13-7-1968, drawn on national bank of Pakistan, Shandadpur.

4. Out of the pleadings of the parties, the learned trial Court judge framed the Issues. In order to prove their respective claims the parties led their evidence. At the end of the day, the learned trial Court judge dismissed the suit of the petitioner while answering all issues, including legal ones, against the petitioner except that of issue No.2. Such decree of dismissal of suit of the petitioner, on assailing before appellate court, also failed.

5. Learned counsel for the petitioner, inter alia, contended that both the courts have committed illegalities by recording the impugned judgment (s), though the petitioner was found owner by the learned trial court judge itself; learned appellate court totally ignored provision of Order 41 Rule 31(a) C.P.C., which is obviously an illegality; no gazette notification of acquiring the applicant's land was produced hence applicant is still owner of the suit land, thus both courts below committed illegality while dismissing the suit of the applicant / plaintiff.

6. Conversely, the learned A.A.-G. while refuting the contention, argued that the revision is not sustainable under the law and it is a case of concurrent findings and in revisional Court the facts recorded by the inferior Courts cannot be disturbed, therefore, this revision is not maintainable under the law.

7. Heard the learned counsel for the respective parties and perused the record.

8. After consideration of contention raised by the counsel for the respective parties and meticulous examination of available record, it is an admitted position that the appellate Court has not framed the point for determination, though it was the mandatory requirement of the law, under Order 41 Rule 31 C.P.C. However,' in many precedents a view is held that if all points have been discussed but mere points in shape of issues are not available, such irregularity cannot be termed as illegality and it is to be seen whether issues decided by the trial Court and grounds taken in appeal have been discussed by the appellate Court or not. Without prejudice to this, I am also conscious of the legally established principle of law that the legality and competency of a suit can always be examined because procedure is meant for facilitation and not to keep an incompetent proceeding alive in name of technicalities. The legality and competence of a legal proceeding, however, be judged only on basis of admitted and undisputed facts. Thus, I would like to examine the case in hand on this touch stone. The perusal of the record shows that petitioner / plaintiff himself admitted that:-- "I had filed the suit for same survey number 393/A in the Court of Senior Civil Judge, Shandadpur as FC Suit No.71/1981 and the same was dismissed. After the year 1981 the M.C. SHD. had constructed the shops over the S.No.393/A. I was remained silent after dismissal of the suit in 1988. It is fact that after 1988 since 1998 I was remain silent and I have not file any suit etc; in the mean time".

9. It has time and again been held by Honourable Supreme Court that any aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit is filed beyond limitation, each day's delay has to be explained. Facility, regarding extension of time for challenging orders and infringement of rights cannot be legitimately stretched to any length of unreason period at the whims, choices or sweet will of affected party. Reference, if any, can be made to the case of Lal Khan v. Muhammad Yousif through legal heirs reported in PLD 2011 SC 657.

10. The suit of the petitioner / plaintiff is also not sustainable on the principle of laches because the delay defeats equity as the equity aids vigilant and not an indolent. Those who sleep over their rights stand estopped from getting enforcement of their rights though their rights continue. It is the law of laches which takes away the right of party to have the right enforced, which otherwise, is enforceable under the law because the law requires that one, having an enforceable right, should seek enforcement whereof within time specified by law. It is the conduct and attitude of the party itself which brings the doctrine of the laches into play where the party loses such right to the extent of its enforcement.

11. The petitioner / plaintiff admitted in his examination-in-chief that "it is a fact that when I came at Shandadpur in 1977 / 1978 shops were constructed by Municipal Committee Shandadpur on suit land". Such admission on part of the petitioner / plaintiff leaves nothing ambiguous that he had acquired knowledge of infringement of his right, interest and claim, if any, in the year 1977/1978 yet, per the petitioner / plaintiff, he filed the first suit in the year 1981, which stood dismissed in the year 1988 and then he remained silent for another ten years without any legal and lawful justification and sufficient cause. This fact was also admitted by the petitioner / plaintiff in his cross-examination that "It is fact that I have filed the present suit after ten years after dismissal of my suit in 1998". There is also an admission on part of the petitioner / plaintiff that "It is fact that Jinnah Park is constructed since 40 years back". This admission on part of the petitioner/ plaintiff also makes it evident that he was in full knowledge and notice about infringement of his legal right, if any, at such time therefore, the law was requiring him to have approached the Court within the time, so provided by the law of Limitation but he has acted otherwise. The limitation operates as a legal bar to the grant of remedy. The limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period / time , the grievance though remains,, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because the principle of limitation / laches, same right then vests / accrues in favour of the opposite. Thus, it is patent that the suit of the petitioner / plaintiff is hit by both the law of limitations so also by principle of laches.

12. The instant suit of the applicant /plaintiff is also not sustainable if viewed on the admission (s) of the applicant / plaintiff in his cross-examination whereby he admitted that "it is in my knowledge that Government has acquired my suit land before 1980 and that "It is a fact that concerned authority / D.C. Sanghar acquired 0.11 ghuntas from suit land". These admissions also make it clear that applicant / plaintiff was very much in knowledge about acquiring of his lands by the concerned authority / D.C. Sanghar and legal status of such acquiring proceedings were not challenged/ questioned by the applicant / plaintiff. Thus, the applicant / plaintiff, by not challenging / question the legality whereof, allowed principle of acquiescence to come into play whereby the applicant / plaintiff is no more legally competent to question the same. It is well settled law that party once approaching the Court for seeking relief shall seek all the relief to which it thinks is entitled to and if such relief, even if available but not asked for, cannot be claimed by filing a subsequent legal proceedings.

13. Above discussion prima facie prove that the suit of the applicant/ plaintiff is not sustainable under the law rather is barred by the law hence, it would not be just and proper to remand the instant matter for re-writing of judgment by appellate court in line with provision of Order 41 Rule 31 C.P.C. because rejection of an incompetent or a barred by law suit would meet the ends of justice because a requirement of law should not be allowed to be defeated in name of a mere procedural irregularity. Consequently, the civil revision application is hereby dismissed being not maintainable.

14. Above, are the reasons of a short order dated 5-8-2013 whereby this civil revision was dismissed. MH/M-180/Sindh Revision dismissed.