2001 PLP 1154 (MLD)

Mian Abdul Salam Arain for Respondent No.

1. C.M.A. No. 171 of 1999 is an application for setting aside dismissal order dated 5-3-1999, wherein the applicant has prayed that he had engaged Advocate Mr. Gul Bahar Korai, who filed his power on 13-4-1998 and subsequently he shifted from Sukkur to Karachi. The applicant was not given such intimation by the counsel as a result of which the matter was fixed for non-prosecution on 15-3-1999 as the process fee was not deposited by the applicant and Mr. Saifuddin Shah on the said date made a statement on behalf of Mr. Gul Bahar Korai that the latter wants to remain absent for instructions. Since the matter was fixed for non-prosecution, therefore, the revision was dismissed, as such. It is contended by the applicant that he had no knowledge about the shifting of his counsel from Sukkur to Karachi. He had also no knowledge that the matter was fixed on 15-3-1999. On the said date Mr. Gul Bahar Karai remained absent for want of instructions and the revision was dismissed on the same day without issuing any notice to the applicant. It is contended that no notice as required under rule 43 of Sindh Civil Court Rules was ever served upon the applicant by the learned counsel. He states that he will suffer irreparable injury, if the matter is not restored. The restoration application is verbally opposed by the learned counsel for respondent but no counter-affidavit has been filed to controvert the pleas raised by the applicant. The matter was dismissed in absence of the applicant on the ground that the Advocate appearing on his behalf, remained absent. The legal formalities were not complied with by the learned counsel and he did not intimate him before his remaining absent. In these circumstances dismissal order is set aside and the matter is restored to its original position as it was then on 15-3-1999 before its dismissal. By the consent of the parties the matter is taken up for Katcha Peshi as it is an old matter pending since 1998 for Katcha Peshi. Through this civil revision the applicant has assailed the judgment and decree dated 26-11-1997 and 1-12-1997, respectively passed by 1st Additional District Judge in Civil Appeal No.25 of 1995, whereby he set aside the judgment and decree dated 9-4-1995 and 14-4-1995 respectively passed in Civil Suit No. 17 of 1994 whereby the trial Court had dimissed the suit of the applicant. The appellate Court while setting aside the aforesaid judgment and decree held that when trial Court came to the conclusion that subject-matter of pre-emption was valued at Rs.98,000, then the 3rd Class Civil Judge had no pecuniary jurisdiction to proceed further with the matter and that the proper course for him was to return the plaint to applicant under Order 7, rule 10, C.P.C. for its presentation .before the Court having pecuniary jurisdiction in the matter. The brief facts as disclosed in the suit are that he is owner of agricultural land bearing Survey No.892 admeasuring about 1-10 acres situated in Deh and Tapo Pano Aqil. Subsequently area of 1-03 acre out of S. No. 1256. and 2-2 acres out of Survey No. 1257 was sold by respondent No.2 to respondent No.1 through an oral statement before Mukhtiarkar Pano Akil for the consideration of Rs.98,000 in order to defeat the right of pre-emption which is claimed by the applicant. The applicant, therefore, filed a suit for pre-emption in the Court of Civil Judge Pano Aqil, wherein he took a plea that false price of Rs.98,000 was shown and that in fact the land was sold for Rs.15,500 at the rate of Rs.4,000 per acres. The Khata was accordingly mutated on 4-5-1994 in favour of respondent No.

1. The applicant made required demands from the respondents but on their refusal to accede to his demands tiled a suit for pre-emption. ' The parties led their evidence and ultimately the trial Court dismissed the suit of the applicant. The applicant preferred an appeal against the said judgment and decree in the Court of learned District Judge Sukkur which was ultimately decided by 1st Additional Sessions Judge Sukkur and the said judgment and decree are impugned in this revision. The applicant has contended that the land in question is sold for Rs.14,500 at the rate of Rs.-1,000 per acre but in order to defeat the right of pre-emption of applicant, false price is disclosed before the Mukhtiarkar. The evidence adduced by the applicant has not been properly appraised and assessed by the trial Court. He states that since the sale-deed was not registered, therefore, the oral evidence adduced by him should have been given due weight by the trial Court. He pleaded that the learned appellate Court had not considered the aforesaid point and has wrongly held that plaint be returned for presentation before the proper Court. Mr. Mian Abdul Salam Arian learned counsel appearing for the respondents states that the trial Court had jurisdiction in the matter and he had rightly and legally dismissed the suit of the applicant. It is argued by the learned counsel that the land was purchased for the consideration of Rs.98,000 and the plea that it was purchased for Rs.14,500 is not tenable. He states that the Court of 3rd Class Civil Judge was competent to dismiss the suit. The record of two Courts below reveals that suit-land was sold by respondent No.2 in favour of Respondent No.

1. The mutation was accordingly made in Revenue Record in the office of Mukhtiarkar Pano Aqil. The mutation entry indicates that land was sold for the consideration of Rs.98,

000. Such Pass Book was issued by the Mukhtiarkar concerned which reflected the same price. The trial Court has come to the conclusion that the suit was wrongly filed before that Court as it was out of its pecuniary jurisdiction, then in that event, he should, have returned the plaint under Order 7, Rule 10, C.P.C. to applicant for its presentation before the competent Court having pecuniary jurisdiction in the matter rather than to dismiss it. The suit was dismissed by the Court on merits which had no jurisdiction in the matter. The appellate Court has rightly observed that the trial Court should have returned the plaint as stated above. The impugned judgment does not suffer from any illegality or infirmity and needs no interference. Consequently this revision is meritless and is dismissed in limine, with no order as to costs. Q.M.H./G-35/K Petition dismissed.