2019 PLP 651 (CLC)

ABDULLAH BALOCH, J.

This Constitutional Petition has been directed against the order dated 19th August, 2017 passed by the learned Senior Civil Judge, Sibi (hereinafter referred as "the trial Court") and order dated 28th September, 2017 (hereinafter referred as "the impugned order") passed by the learned District Judge, Sibi Division Sibi (hereinafter referred as, "the appellate Court") with the following prayer: "It is, therefore; respectfully prayed that in the light of above mention submissions, the impugned order dated 19.08.2017 passed by learned trial court i.e. Senior Civil Judge, Sibi in Civil Suit No.65/2016 and impugned order dated 28-09-2017 passed by learned District Judge, Sibi in Civil Revision No.06/2017 may kindly be set aside and the application under Order VI Rule 17, C.P.C. preferred by petitioner/plaintiff may also be allowed, in the interest of justice, fair play (sic) and equity please."

2. Brief facts arising from the instant petition are that the petitioner/plaintiff filed a suit for declaration and permanent injunction against the respondents in the trial Court with the averments that he is lawful owner of water channel existed at his properties while the respondents Nos.1 to 13 forcibly and illegally diverting the water channel towards their properties.

3. The suit was contested by the respondents/defendants by means of filing written statements wherein raised legal objections with regard to non-maintainability of the suit.

4. Out of the pleadings of the parties the learned trial Court framed as many as the following issues: "

1. Whether the suit of plaintiff is hit by mis-joinder and non-joinder of necessary parties?

2. Whether the defendants rightly erected Ghanda over the disputed Channel?

3. Whether the erection of defendants Ghanda deprived the plaintiff from his share of Salabe Water?

4. Whether the plaintiff has right of water flow from the disputed channel?

5. Relief?"

5. After recording evidence of plaintiff, meanwhile, the petitioner filed an application under Order VI Rule 17, C.P.C. for amendment of his suit, which was dismissed by the learned trial Court vide order dated 19th August, 2017.

6. Being aggrieved the petitioner/plaintiff filed a Civil Revision before the Revisional Court, which was contested by the parties and thereafter the revision was dismissed vide impugned order as mentioned above in para No.1.

7. Heard the learned counsel for the parties and perused the record, which reflects that the petitioners filed a suit for declaration and permanent injunction in the Court of Senior Civil Judge, Sibi against the respondents on 8th August, 2016, which was contested by the other side. In order to prove its case the petitioner produced as many nine (09) witnesses including the official witness and only the statement of petitioner/plaintiff was yet to be recorded, but meanwhile the petitioner/plaintiff filed an application under Order VI Rule 17 of C.P.C. for amendment of its petition by inserting Khasra No.1017 in the suit property, which was contested by the other side and vehemently opposed. The learned trial Court after hearing the parties dismissed the application while observing that the application does not disclose any cause of action and the petitioner has provided several opportunities to record his own statement, but failed to record his own statement and want to prolong the matter, hence the application filed by the petitioner was dismissed vide order dated 19th August, 2017.

8. Being aggrieved the petitioner assailed the above order a Civil Revision Petition under section 115 of C.P.C. before the learned District Judge, Sibi and after hearing the parties the learned Revisional Court has categorically observed that: "The petitioner/plaintiff also silent about any fresh cause of action. Though minor amendments can be allowed in the suit but amendment to the extent of change of nature and structure of suit cannot be allowed. At this stage on perusal of record it transpires that Khasra No. 1017 is a joint property of Hakeem Khan, Ikhtiar Khan, Misri Khan, Ali Khan and Khuda Bakhsh who were also not party in the suit and there is no any document available on record to show that Khasra No. 1017 is partitioned one. After completion of evidence the petitioner/plaintiff cannot be allowed to fulfill the lacunas."

9. In view of the above, observations and concurrent findings of the both Courts below the learned counsel for the petitioner has failed to point out any illegality or irregularity, misreading and non-reading of evidence in the impugned order passed by the Courts bellow. Thus, the petition being devoid of merit is dismissed with no order as to cost and the earlier interim order passed by this Court are vacated and the trial Court is directed to conclude the case expeditiously in accordance with law. SA/2/Bal. Petition dismissed.