MUREED ABBASS Versus GHULAM QADIR
KHADIM HUSSAIN M. SHAIKH, J.--- This civil revision application is directed against the judgment dated 15.10.2016, passed by the Additional District Judge, Mirwah in Civil Appeal No.19 of 2016 re-Mureed Abass v. Ghulam Qadir filed against the judgment and decree dated 13.02.2016 respectively, passed by Senior Civil Judge, Mirwah in Civil Suit No.110/2013 re-Ghulam Qadir v. Mureed Abass, whereby partly decreeing the suit for Rs.100,000/- (One Lac) as against Rs.200,000/- (Two Lac) claimed by the plaintiff as damages against the defendant.
2. Briefly the facts of the case are that respondent/plaintiff Ghulam Qadir (hereinafter will be referred to as the respondent) filed suit being Suit No.110/2013 for Recovery of Damages of Rs. 200 000/- against the applicant/defendant Mureed Abass (hereinafter will be referred to as the applicant) stating therein that the applicant had lodged two FIRs being FIR No.232/12 for offence punishable under sections 448, 511, 147, 148, 149, P.P.C. and FIR 228/2013 for offence punishable under section 382, P.P.C. at Police Station Mirwah against the respondent. After the trial of the criminal cases culminated from the aforesaid FIRs, the respondent and others were acquitted of the charges, finding the cases false and managed. The respondent, claiming an amount of Rs.100,000/- for loss of reputation, Rs.70,000/- as financial loss and Rs.30,000/- on account of loss of his health etc, filed the instant suit. The applicant appeared before the trial Court along with his advocate, who filed his Vakalatnama on 27.09.2013 and then the matter was repeatedly adjourned for filing written statement, but the applicant had not filed his written statement and ultimately the applicant was debarred from filing his written statement vide order dated 02.09.2014. After the evidence, adduced by the plaintiff, the suit was decreed for only Rs.100,000/- vide judgment dated 13.02.2016 and decree dated 16.02.2016, which were appealed against in Civil Appeal No.19/2016, filed by the applicant, which was ultimately dismissed by the Additional District Judge, Mirwah vide impugned judgment dated 15.10.2016, hence this revision application.
3. Learned advocate for the applicant has mainly contended that no proper opportunity was afforded to the applicant by the trial Court to contest the matter; that the appellate Court without considering such aspect of the case, has dismissed the appeal; and, that the impugned judgments and decrees, passed by the trial Court and the appellate Court, are illegal. He, therefore, prays that the impugned judgments and decrees, passed by both the Courts below may be set aside and the case may be remanded to the trial Court, allowing the applicant to file his written statement and to lead his evidence.
4. Learned counsel for the respondent has mainly contended that the applicant had appeared before the trial Court, and also engaged his advocate, who filed his Vakalatnama on 27.09.2013 and then the matter was repeatedly adjourned for filing written statement of the applicant, who himself failed to file written statement with the result that the trial Court by debarring the applicant from filing the written statement directed the respondent to adduce the evidence, and after the evidence, adduced by the applicant, the learned trial Court passed the impugned judgment and decree, partly decreeing the suit, which were maintained by the learned appellate Court; and, that there are concurrent findings of the Courts below. He, therefore, prays that the revision application may be dismissed.
5. I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
6. From a perusal of the record, it would be seen that on 27.09.2013 the applicant appeared before the trial Court along with Mr. Zafar Ali Shah Advocate, who filed his Vakalatnama and thereafter the matter was adjourned from time to time for filing the written statement of the applicant, who not only failed to file his written statement, but had chosen to remain absent continuously without any intimation; on 02.09.2014 i.e. after nearly one year of the appearance of the applicant before the trial Court, the applicant was debarred from filing his written statement and the respondent was directed to adduce evidence by filing his affidavit in ex parte proof, which he filed as Ex.06 and then also produced certified copies of the judgments, passed in Criminal Case No.206/2012 re-The State v. Zameer and 4 others and Criminal Case No.255/2012 re-The State v. Ghulam Qadir and 3 others at Ex.6/A and 6/B respectively; on 27.09.2014 Mr.Ghulam Nabi Shar, advocate filed Vakalatnama on behalf of the applicant, who again after seeking repeated adjournments, ultimately cross-examined the applicant on 13.02.2015; the trial Court after considering the evidence brought on record has decreed the suit for Rs.100,000/- as against Rs.200,000/- claimed by the respondent. The relevant paragraphs of the judgment dated 13.02.2016, passed by the trial Court are reproduced here for the sake of convenience:-
"Plaintiff Ghulam Qadir in affidavit of his ex parte proof has stated same facts ad disclosed by him in his plaint and clearly stated that due to filing false FIRs by defendant against him and others, he sustained loss to his reputation and financial loss/health and wealth. From perusal of Judgments passed in Cr.Case No.206/2012 and 255/2012 dated 30-7-2013 passed by learned I-Civil Judge and Judicial Magistrate, Mirwah in which it has been observed by the learned trial court that "prosecution story is not only free from reasonable shadow of doubt, but it appears to be false and concocted due to matrimonial enmity and dispute of plot of Imam Bargah... Thus plaintiff has supported his version as set-forth in his plaint regarding sustaining loss to his reputation and so also loss to his health and wealth/financially loss. On the other hand, the defendant has failed to prove that he had got registered FIRs against plaintiff' and other regarding his actual incidents. Even otherwise, learned Advocate for defendant has also failed to given any suggestion to plaintiff during his cross-examination that above said FIRs were got registered by defendant against plaintiff and others legally regarding actual happening of incidents, but even he did not bother to give any suggestion that plaintiff and others were really involved in commission of said offences. Therefore, from the conduct of defendant and so also from the perusal of material brought on record including observations given by learned trial court in Judgments (Ex.6/A and 6-B respectively) it proves that plaintiff and others were involved in false cases/Crimes and such FIRs were lodged against them falsely. Even otherwise, the defendant has also failed to challenge above Judgments of trial court in which there are clear observations regarding false and concocted stories of above cases/FIRs including false implication of plaintiff and others, which amounts that defendant was agreed with said observations of learned trial court regarding false cases. Thus plaintiff has successfully proved is claim regarding recovery of damages regarding his reputation and so also financial loss at the hands of defendant. Since the plaintiff has himself stated in his plaint that he and others who were involved in above cases/crimes were totally sustained dathages at Rs.200,000/- hence he is not entitled to claim damages for whole amount including on behalf of others as stated by-him in his plaint at para No.5.
Therefore, in view of above discussion and reasons, the plaintiff is entitled for damages on account of his false implication in above FIRs/cases as stated here-in-above at the hands of defendant, therefore, he is only entitled to recover damages from defendant for himself at Rs.100,000/- (one lac). Consequently, the suit of plaintiff is decreed as discussed above with no order as to costs. Let such decree be prepared accordingly."
7. The appellate Court dismissed the appeal filed by the applicant vide judgment dated 15.10.2016. The relevant paragraphs of the said impugned judgment of the appellate Court, are reproduced here for the sake of convenience:-
7/- In view of submission of learned Advocate for appellant, firstly I would like to decide the question of maintainability of instant appeal "Whether the appeal is maintainable or time barred or otherwise"
8/- In this regard there are some reported cases, wherein the Hon'ble Apex Courts allowed the petitioner for the payment of deficient Court Fees and wherein the parries Court fees in petitions/appeals after getting order from the court by filing applications under section 149, C.P.C. But it is matter of record that in instant civil appeal neither Court fees on decretal amount was deposited nor application under section 149, C.P.C. for grant of time or condonation of delay have been moved. Moreover, from perusal of memo of instant civil appeal, it appears that appellant has also not valued his appeal. Non-affixing of court fee stamps within time with memo of appeal no application for condonation is moved, which proved that appeal is hopelessly time barred. In this connection, I am fortified with the case law re-Qazi Muhammad Ilyas and 7 others v. Qazi Muhammad Raees and 3 others reported in 2014 CLC 160 (Sindh), the Hon'ble High Court has held as under:-
"Ss. 96, 107, 115 & 149--- Filing of first appeal without court-fee---Making-up deficiency of Court-fee---Scope---Payment of court-fee along with application under S.149, C.P.C. made at time of arguments---Order of Appellate Court allowing appellant to pay Court-fee---Validity---Time for payment of court-fee could be extended under S.149, C.P.C. before expiry of period of limitation prescribed for filing an appeal, but not thereafter---Delay in filing appeal or payment of court-fee could not be condoned under S.149, C.P.C. after expiry of prescribed period of limitation---Payment of court-fees beyond period of limitation prescribed for filing an appeal would render appeal itself as time barred---Appellate Court had allowed appellant to pay court-fee when his appeal was barred by limitation---High Court accepted revision petition and set-aside impugned order in circumstances.
In another un-reported order dated 11-8-2014 passed in Re Civil Revision No.52/2014 Market Committee Shikarpur and others v. Agha Shafi Muhammad Khan and others, wherein Hon'ble High Court of Sindh, Circuit Court Larkana has held as under:-
"ORDER 11-08-2014
Respondents have filed suit for restoration of possession and compensation against the appellants. The suit was decreed in terms of Judgment dated 19-5- 2011 and decree was passed on 25-5-2011. Aggrieved with Judgment and decree the applicant preferred an appeal bearing Civil Appeal No.14 of 2011. However, the record reflects no court fee at the time of filing of appeal was affixed. The judgment of the 2nd Additional District Judge Shikarpur passed in Civil Appeal No. 14 of 2011 reflect that the court fee before the appellate court was deposited on 15-03-2014 without any application under section 149, C.P.C. Thus no ground was established before the appellate court forum for such delay in affixing court-fees. The record also shows that he has affixed court fee but that was subject to all just exceptions. The court fees appears to have been filed after the delay of 02 years and 09 months and hence the appellate court held that since the prescribed period for filing of appeal was 30 days therefore, appeal was hopelessly barred by time".
8. Admittedly, the applicant was not on defence due to his own default, for, the applicant had appeared before the trial Court along with his counsel and then abstained from contesting the matter and instead of filing his written statement, he chose to remain absent continuously for nearly one year and ultimately he was debarred from filing his written statement, moreover, the required court-fee was not paid on the memo of the appeal by the applicant, and as such the appeal, which, in my humble view, was not validly instituted, was resultantly dismissed vide impugned judgment dated 15.10.2016, passed by the Additional District Judge, Mirwah, following the observations of this Court in the aforementioned two judgments. On a query, learned counsel for the applicant has submitted that the Execution Application No.03 of 2016 filed by decree holder/respondent has also been allowed by the Executing Court vide order dated 17.10.2016 and that order has also not been called in question by the applicant.
9. In view of what has been discussed above, I am of the considered view that the learned Courts below, while passing the impugned judgments and decrees, have not committed any illegality and there is also no jurisdictional defect, in the exercise of jurisdiction by both the Courts below, attracting provisions of section 115 of Code of Civil Procedure (Act-V of 1908). Accordingly, the instant civil revision application being devoid of any merit, is dismissed with no order as to costs.
MH/M-110/Sindh Revision dismissed.