2018 PLP 91 (CLCN)

ZULFIQAR AHMAD KHAN, J.

Learned counsel for the applicants who took time on the last date to come prepared is present today but states that he is not ready to proceed with the matter and suggests that the applicant has indicated to engage a new counsel. This was contrary to the statement of the learned counsel made yesterday when he specifically affirmed that his name is on Vakalatnama and he will proceed with the matter today. No application for withdrawal of Vakalatnama is even moved. This new twist is only aimed to delay this matter of which brief facts are as under:

2. Briefly the facts of the case are that the respondent No.1/plaintiff has filed a suit for declaration, cancellation of sale deed, specific performance of contract and permanent injunction against the applicants/respondents Nos.1 and 2 and respondents Nos.2 to 4/defendants No.3 to 5 with the following prayer:- "a. That act of defendant No.1 in collusion with other defendants Nos.2 and 3 regarding refusal to execution of sale deed in favour of plaintiff and fraudulently after sale of suit plot to plaintiff and receiving Rs.45,000/- from plaintiff, he sale the suit plot to defendant No.3 through registered sale deed is illegal, mala fide, improper, unjustified, unlawful, fraudulent, cheating, bad in eyes of law and is against the principle of natural justice. b. To cancel registered sale deed No.2935 dated 3.12.2004 executed by defendant No.1 in favour of defendant No.3 regarding sale the suit plot to defendant No.3 in presence of executed by defendant No.1 in favour of plaintiff. c. Direct defendant No.1 to hand over possession of suit plot No.E-270 area 1250 sq: feet situated in Guiberg Town Mirpurkhas and to execute and register sale deed of suit plot in favour of plaintiff on receipt of remaining amount of Rs.5000/-. In case of his failure, the Nazir of this Court be directed to do above act on behalf of defendant No.1. d. Permanent injunction be granted against defendants Nos.1 to 3 restraining and prohibiting them from selling, alienating, mortgaging the suit plot to any one else except the plaintiff, themselves, or through their agents, servants, directly or in directly by any means and manner whatsoever. e. Cost of the suit be borne by defendants. f. Any other relief may deem fit and proper."

3. The suit was contested by the applicants/defendants Nos.1 and 2 and respondent No.2/defendant No.3 and they filed their written statements respectively wherein they have denied the assertions of respondent No.1/plaintiff and pleaded that the respondent No.1/plaintiff has no cause of action to file the suit, which is liable to be dismissed being barred under many provisions of law, while the respondents Nos.3 and 4/defendants Nos.4 and 5 did not contest the suit and declared ex parte vide order dated 18.9.2006. Thereafter, the learned trial Court framed as many as 14 issues and then during the proceedings both the contesting parties led their respective evidence and thereafter, the learned trial Court after hearing the learned counsel for both the contesting parties decreed the suit of the respondent No.1/plaintiff as prayed vide judgment dated 30.3.2013 and decree dated 03.4.2013.

4. Being aggrieved with the said judgment, applicants preferred an appeal, where the appellate Court maintained the findings of the trial Court and dismissed the said appeal while observing that from the perusal of record and after hearing both the sides admittedly the suit plot was booked by the respondent No.1/plaintiff in the year 1997 from the Housing Scheme known as Gulberg Town owned by the applicants/defendants Nos.1 and 2 and the respondent No.1/plaintiff deposited Rs.40,000/- in the office of applicants/defendants Nos.1 and 2 through installments and subsequently the applicants/defendants Nos.1 and 2 illegally without observing legal process cancelled the suit plot on the name of the respondent No.1/plaintiff and sale the said plot to the respondent No.2/defendant No.3 namely Jahangir Khan even without giving any intimation to the respondent No.1/plaintiff. It is also admitted fact that the respondent No.1/plaintiff paid Rs.40,000/- to the applicants/ defendants Nos.1 and 2 through installments and as per stance of the respondent No.1/plaintiff total sale consideration amount was fixed Rs.45,000/- in respect of the suit plot, which was required to be paid through installments and the respondent No.1/plaintiff had paid amount of Rs.40,000/- and Rs.5000/- only was remained outstanding which was not paid due to the reason as the applicants/defendants Nos.1 and 2 have not made development in the Housing Scheme as per their obligation, whereas the applicants/defendants Nos.1 and 2 claimed that the plot was booked in total sale consideration amount of Rs.1,00,000/-. However, the learned trial Court after given due consideration to the material produced before the learned trial Court has passed detailed Judgment supported with relevant evidence in favour of the respondent No.1/plaintiff.

5. Appellate Court further observed that it is pertinent to mention here that the appellant No.1/defendant No.1 namely Abdul Jabbar is real brother of other co-sharers and he was already managing all the affairs of Gulberg Town established on the land owned by all share holders including present appellant Abdul Jabbar. It is also admitted position that the appellant No.1/defendant No.1 Abdul Jabbar was executing all registered sale documents in his own capacity as well as in the capacity of attorney on behalf of all other co-sharers, who are his brothers and sisters, therefore, the contention of the learned counsel for the applicants/defendants Nos.1 and 2 looks to be imaginary and devoid of force that the applicants/defendants Nos.1 and 2 have allotted the suit plot to the respondent No.1/plaintiff without consent and will of other co-sharers.

6. It would be relevant to mention here that admittedly the applicants/defendants Nos.1 and 2 received Rs.40,000/- from the respondent No.1/plaintiff as sale consideration amount in respect of the suit plot in the year 1997 and subsequently neither handed over possession of the suit plot nor returned amount Rs.40,000/- to the respondent No.1/plaintiff and resold the suit plot to the respondent No.2/defendant No.3, hence the victim respondent No.1/plaintiff have been revolving from pillar to pole and suffering since about 17 years in the hope of justice.

7. It was for the above reasons that after appraisal of record and hearing from both the sides, the appellate Court opined that no any illegality or irregularity was committed by the learned trial Court while passing the impugned judgment and decree, which needed no interference of the appellate Court.

8. The instant revision having been filed against the concurrent findings of the Courts below. A perusal of the judgments shows that the same have been passed after considering the evidence available on record and after hearings both the sides, no illegality or irregularity seems to have been committed by these Courts, and in the absence of any defect in the concurrent findings of the Courts below, interference of High Court in civil revision as held by apex Court in 2006 SCMR 50 (b), amounts to improper exercise of revisional jurisdiction.

9. 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, merits no consideration and the same is accordingly dismissed. SA/A-71/Sindh Revision dismissed.