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Regular Appeal No.158 of 1984, decided on 5th July, 1984.
----S.115---Revisional jurisdiction--No error being found in concurrent findings of fact by two Courts below, High Court declined to interfere.
P L D 1975 S C 678; Manzoor Hussain and others v. Sajumal and others 1983 S C M R 465 and Gulzar Khan v. Mst. Razia Begum 1982 S C M It 843 ref.
1983 S C M R 424 and 1983 S C M R 656 distinguished.
Muhammad Bux v. Muhammad Ali 1984 S C M R 524 rel.
Riyaz Ahmad for Applicant /Petitioner.
Naimatullah Soomro for Respondent.
This revision under section 115, C.P.C. has been filed against the orders of IVth Extra Joint Civil Judge, Hyderabad, dated 24-4-1983 passed on the application filed under Order IX, rule 13, C.P.C. and order, dated 13-5-1984 of IIIrd Additional District Judge, Hyderabad dismissing the Miscellaneous Civil Appeal No.2 of 1984.
Relevant facts leading to this revision are that respondent filed civil suit against the petitioner for the recovery of Rs.11,000 being the rent of the premises bearing C.S.No.406/407 and 410 situated at Masan Road, Hyderabad on 27-11-1982.
The suit was decreed by IVth Extra Joint Civil Judge, Hyderabad on 26-4-1983. The petitioner/defendant filed an application under Order IX, rule 13, read with section 151, C.P.C. alongwith an application under section 5 of Limitation Act oil 7-8-1983 after about more than three months of decree. The IVth Extra Joint Civil Judge, Hyderabad, dismissed his both applications by a single order, dated 24-11-1983.
The petitioner filed Civil Miscellaneous Appeal against the order of Joint Civil Judge. The same was also dismissed on 13-5-1984 by IIIrd Additional District Judge, Hyderabad and now this revision has been filed.
Mr. Riyaz Ahmed appearing for the petitioner has contended that IVth Extra Joint Civil Judge has wrongly passed the decree and without applying his mind he dismissed the applications under Order IX, rule 13, and under section 5 Limitation Act of the petitioner. He has also argued that order of Additional District Judge is also bad in law. He has relied on cases reported in P L D 1975 S C 678 and 1983 S C M R 424 and 656 and stated- that this revision is competent.
Mr. Naimatullah Soomro Advocate appearing for respondent on pre-admission notice has submitted that petitioner was tenant of the respondent. The Rent Controller passed tentative rent order, but he failed to deposit the rent therefore ejectment order was passed against him. He filed appeal in High Court the same was also dismissed and then respondent filed suit and it was decreed.
Respondent has filed counter-affidavit in which it is stated that execution application was filed against the petitioner and it was allowed vide order, dated 4-2-1984 and consequently the petitioner was arrested and sent to Civil Prison. The petitioner filed revision against that order but District Judge dismissed the same vide order, dated 18-5-1984.
Before IVth Extra Joint 'Civil Judge the petitioner filed written statement and on the pleadings of the parties issues were framed. The plaintiff was examined but petitioner did not appear therefore plaintiff was not cross-examined even he had not adduced any evidence. Therefore decree was passed. The application for condonation was also dismissed and according to law the applications have rightly been dismissed as he had to explain absence of each and every day. The explanation has not been considered plausible by the trial Judge. More so, the petitioner admittedly on 5-4-1983 sought an adjournment but thereafter no body appeared and, suit was rightly decreed. It is not an ex parte decree as written statement was filed, the issues were framed and plaintiff was examined.
The IIIrd Additional District Judge, Hyderabad has also tho roughly discussed all the points in his judgment.
The authorities cited by the counsel of the petitioner are:----
(1) Mst. Fatima Export Corporation v. Habib Bank, 1983 S C M R 424, where it has been held that consolidated appeal under section 96 and Order IX, rule 13 is competent and that if findings on correctness of decree are not given the case was remanded in.....
(2) Case reported in 19113 S C M R 656, it has been held that when judgment and decree passed by subordinate Courts illegally or with material irregularity the High Court can interfere under section 115, C.P.C."
The facts of both the cases cited above are distinguishable from the present case.
In my view decree has been passed on merits and condonation of application for delay in filing application under Order IX, rule 13 has rightly been dismissed' as application was filed after more than 3 months as stated above. On this I refer to a case of Manzoor Hussain and others v. Sajumal and others 1983 S C M R 465, even limitation barrel by one day without proper explanation the Supreme Court held that there was no justification for condonation of delay. In a case of Gulzar Khan v. Mst. Razia Begum 1982 S C M R 843, it has been held that concurrent findings on question of fact by trial Court rind appellate Court could not be interfered with by High Court in exercise of its revisional jurisdiction unless error of jurisdiction found and same view is taken in case of Muhammad Bux v. Mohammed Ali 1984 S C M R 524.
The upshot of the above discussion is that no error is found in the concurrent findings of the IVth Extra joint Civil Judge and IIIrd Additional Sessions Judge, Hyderabad. In both the orders all the relevant facts have been discussed thoroughly.
The result is that this revision application under section 115 C.P.C. has no merits and is therefore dismissed in limine.
M.I. Revision dismissed.
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