MUHAMMAD RAMZAN Versus Mst. JAN BIBI Muhammad Ewaz Zehri

AKHTAR ZAMAN MALGHANI, J.--- This revision petition is directed against the judgment, dated 16-8-2006 passed by Majlis-e-Shoora, Khuzdar, whereby; appeal filed by the petitioners against the judgment and decree, dated 29-5-2006 rendered by Qazi, Jhalawan was dismissed upholding the said judgment and decree.

2. Briefly stated, facts of the case are that the respondents filed a suit for declaration and permanent injunction in the Court of Qazi, Jhalawan, which suit was contested by the petitioners by way of filing written statement.

Out of pleadings of the parties following issues were framed: --

The respondents produced three witnesses and also got recorded , statement of their attorney, whereas; petitioners also produced three witnesses in addition to statement of their attorney.

3. The learned Qazi, Jhalawan decreed the suit vide judgment and decree, dated 29-5-2006. Appeal filed by the petitioners was dismissed by Majlis-e-Shoora, Khuzdar vide judgment and decree, dated 16-8-2-2006. Hence this petition.

4. I have heard learned counsel for the petitioners as, well as respondents who appeared in person. Learned counsel for the petitioners conceded that there were concurrent findings of facts', which were not amenable to revisional jurisdiction, however; he vehemently argued that the respondent No.1 was insane person and the suit without next friend could not have been instituted as provided under Order XXXII, rule 15, C.P.C. In this regard he placed reliance on the judgments reported in PLD 1994 Lah. 706 and 1994 MLD 377.

5. I have carefully considered the contentions put forth by the learned counsel for the petitioners. It may be noted that the respondents instituted a suit for declaration and permanent injunction against the petitioners stating therein that the property bearing Khasra Nos.149, 143 and 5.32 situated in Pasi Jhal Sharki Halqa Ferozabad was their ancestral property and the mutation entries were also carried out in favour of their father. They have leased out the said property to some one on Ajara but the defendants restrained the Ajaradar from making any payment or share of produce to the petitioners. It was further alleged that the defendants forcibly attempted to cultivate the property. The suit was contested by the petitioners by way of filing written statement. The learned Qazi after striking issues and recording evidence decreed the suit, which decree was upheld by the learned Majlis-e-Shoora. Being concurrent findings of fact the same are not liable to be interfered in revisional jurisdiction as the learned counsel for the petitioners failed to point out any illegality, non-reading of evidence or jurisdictional defect in such findings, however; the learned counsel took objection about maintainability of suit on behalf of respondent No.2, as according to him he was insane person and the suit without next friend is not maintainable. It may be noted that no such objection was taken in written statement though it was stated that the respondent No.2 is dumb, I am afraid that the provisions of Order XXXII, rule 15, C.P.C. are not applicable to a person who is dumb but the learned counsel contended that the respondent No.2 was not only dumb but also deaf and in this regard he referred to the statement of P.W.3 Muhammad Amin who stated that the respondent No.2 was deaf and dumb, even if; it is presumed that the respondent No.2 is deaf and dumb the provisions of Order XXXII, rule 15, C.P.C. are not applicable to such cases. In this regard, I am fortified by the judgment reported in 1971 SCMR 548 wherein; it was observed as under:--

"The contention of the learned counsel has not impressed us. It is quite correct that Mst. Hanifan Bibi is deaf and dumb but there is no proof on the record to show that she is of unsound mind. In these circumstances, Order XXXII, rule 15 of the Civil Procedure Code does not apply to the present case."

It may further be added that the suit filed through attorney on behalf of respondent No.2 and his sister Mst. Taj Bibi who was respondent No.1 and nothing has come on record, which could suggest that the respondent No.1 or their attorney has any adverse interest against the rights of respondent No.2, as such; I am not inclined to non-suit the respondents on such technical grounds by disturbing concurrent findings of fact; particularly; when no objection with regard to maintainability of suit was taken either before the trial Court or in appellate forum.

For the foregoing reasons, I find no merits in the instant petition, which is dismissed accordingly.

H.B.T./39/Q Revision dismissed.