Find a Lawyer

Civil Petition for Special Leave to Appeal No. 360‑K of 1985, decided on 28th August, 1986.

(From the judgment of Sind High Court, Karachi, dated 12‑5‑1985 passed in Second Appeal No. 209 of 1971)

‑‑‑Art. 185(3)‑‑Sind Revenue Jurisdiction Act (X of 1876), S.11‑‑Sind Land Revenue Code, 1879, S. 203‑‑Suit filed by respondents for declaration against petitioners to the effect that demand for payment of construction charges of their watercourse was illegally opposed by petitioner on ground that it was barred under S.11 of Act X of 1876, which provided that where an appeal was competent a suit could not be filed and that appeal was competent under S.203 of Sind Land Revenue Code, 1879‑‑Contention that Government and Irrigation Department which were necessary parties were not made parties in suit and that matter could have been adequately dealt with and decided in departmental proceedings and it was not a fit case for grant of declaration by civil Court‑‑Leave to appeal granted to examine question.

Mehdi Shah v . Government of West Pakistan, Lahore and another L D 1969 Kar. 369 ref.

A. Sattar Shaikh, Additional Advocate‑General, Sind and Muzaffar Hassan, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th August, 1986.

Leave to appeal has been sought in this petition from judgment, dated 12‑5‑1985 of the Sind High Court; whereby the respondents' (plaintiffs') second appeal arising out of a suit filed against the petitioners, was allowed. While setting aside lower appellate Court's decision the trial Court Decree in the .suit of the respondents, was restored.

The respondents had filed a suit for declaration against the petitioners to the effect that the demand for payment of the construction charges of their watercourse was illegal. According to the learned Additional Advocate‑General, the charges were in connection with the sharing of expenses for the construction of the watercourse which was for the utilization of the respondents (plaintiffs)‑‑the expenses under the relevant law were to be shared by the Government and the beneficiary‑landlords in 50 per cent share each. The suit was decreed by the trial Court notwithstanding the objection regarding the lack of jurisdiction. The first appeal filed by the petitioner was, however, allowed and the suit was dismissed. On second appeal a learned Single Judge of the High Court as mentioned above while setting aside the first appellate judgment has restored the decree passed by the trial Court.

Learned Additional Advocate‑General has repeated the plea of bar of jurisdiction and has relied on section 11 of The Sind Revenue Jurisdiction Act (No. X) of 1876, which prima facie barred the filing of suit in this case. It provided that where an appeal is competent a suit could not be filed. Learned Additional Advocate‑General contended that an appeal in this case was competent under section 203 of the Sind Land Revenue Code, 1879 and in this behalf has relied on Mehdi Shah v. Government of West Pakistan, Lahore and another P L D 1969 Kar. 369. He has also contended that the Government and the Irrigation Department were necessary parties in this case, therefore, the suit was bad from non‑joinder of the parties as well. He has further argued that the suit was premature. Only a notice had been issued to the respondents (plaintiffs). They could have raised the factual pleas to be urged before the competent departmental authorities and the matter could thus have been adequately dealt with and decided in the departmental proceedings. It was thus not a fit case for grant of declaration by the Civil Court.

After hearing the learned Additional Advocate‑General, we consider it a fit case for grant of leave to appeal so as to examine the questions raised in the petition.

Order accordingly.

M. Y. H. Leave granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.