Syed Himat Ali Shah (Applicant) VS Government of Sindh and others (Respondent)

ORDER SHEET

IN THE HIGH COURT

OF SINDH BENCH AT SUKKUR

R. A. No. S – 96 of 2009

Date of hearing

Order with signature of Judge

Hearing of case (priority)

For orders on CMA No.1107/2018 (Fast-track)

For hearing of main case

For hearing of CMA No.388/2009 (Stay)

(Notice issued to respondents)

Syed Bahadur Ali Shah, Advocate for the applicant.

Mr.

Abdul Ghaffar Memon, State Counsel.

Learned counsel for the applicant submits that though this revision is against the conflicting findings of two Courts below, however, the judgment of the appellate Court is not in accordance with law. In terms of the contention, the respondent No.1 challenged the order before Additional Commissioner Sukkur which was dismissed, followed by dismissal of his appeal before Member Board of Revenue. He preferred a review application which too met the same fate. He subsequently filed a suit before Senior Civil Judge which was also dismissed. He then preferred an appeal No.33/2006 which appeal was allowed without framing the points for determination.

As per State Counsel Mr. Abdul Ghaffar Memon, the suit was hit by the provisions of Sections 42 and 56 of the Specific Relief Act, and so also on account of the fact the Government of Sindh was not sued through Secretary of the concerned department i.e. Revenue Department. He submits that even if an opportunity is given to them, the suit against the official respondents at least could be time barred, whose order was challenge.

Despite service, respondent No.4 failed to appear, though written arguments were filed and I have taken notice of it.

I

have perused the record and so also the prayer clause. Ghulam Hussain, respondent, who filed a suit, who has shown his identity as Fakir Ghulam Hussain in the suit, sought declaration to the effect of the orders passed by the revenue authorities as illegal, without attributing any malafide. He did not seek any declaration as to his entitlement over the property as such the suit hit by the provisions of Section 42 and 56 of the Specific Relief Act.

Prima facie, such declaration could only be sought in case the respondent Ghulam Hussain was in the process of seeking any declaration as to his own entitlement over the subject land but that is not the case, hence, I agree with the contention of the State Counsel that the suit is hit by the provisions of Sections 42 and 56 of the Specific Relief Act. In addition to the above, the government of Sindh was not sued through concerned Secretary of the Revenue Department, and even if any opportunity is given, in terms of the reported judgment of Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others reported in 2010 SCMR 115, the suit would have been time barred against the officials whose order was challenge. Hence, I do not agree with the reasoning assigned by the appellate Court without considering the consequences of the above legal issues. Hence, this revision application as such is allowed and the judgment of the appellate Court dated 09.06.2009 is set aside.

The revision application is allowed in the above terms with clarification that Government of Sindh (Revenue) shall act in accordance with law with reference to land in question as dismissal of suit does not given any license to the applicant who should be dealt with in accordance with law.

J U D G

E

Abdul Basit