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Petitioner: ZUBEDA BEGUM VS Respondent: GOVERNMENT OF SIND
1988 S C M R 400
1988 S C M R 400
Present: S.A.Nusrat and M.S.H.Quraishi, JJ
Mst. ZUBEDA BEGUM and others--Petitioners
versus
GOVERNMENT OF SIND through Deputy Commissioner, Hyderabad and others--Respondents
Civil Petition for Special Leave to Appeal No: K-160 of 1981, decided on 4th April, 1982.
(On appeal from the judgment and order of the Sind High Court dated 10-5-1981 in Civil Revision 320 of 1980).
Civil Procedure Code (V of 1908)--
---S.115--Constitution of Pakistan (1973), Art. 185(3)--Revisional jurisdiction, exercise of--Suit for declaration and injunction--Relevant issue about petitioners' easement rights not pressed--Suit dismissed by Trial Court and finding confirmed in appeal--Revision dismissed because no ground touching exercise of revisional jurisdiction was raised--Order impugned--Plea that petitioners' counsel at trial stage had no instructions to give up said issue, repelled as frivolous--Held, since no ground touching the exercise of jurisdiction was raised, revision application was not maintainable--Leave to appeal refused.
Faizanul Haq, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 4th April, 1982.
ORDER
S.A.NUSRAT, J.--Leave to appeal in this petition is sought against the judgment of the High Court dated 10-5-1981, passed in revisional jurisdiction under section 115 of the Civil Procedure Code.
Petitioners had filed a suit in the Court of Senior Civil Judge, Hyderabad, for declaration and injunction against the respondents No.3 and 4, on the allegation that they had committed trespass and were making encroachments on the 60 feet wide road on the plot leased out to them by the Government of Sind, in Unit No.10, Shah Latifabad Colony, Hyderabad. One of the reliefs claimed in the suit was for a declaration that the plots of the petitioners were delineated and bounded on the western side by a 60 feet wide road on which they had "all types of easements and other rights." The learned trial Court framed two issues, relevant for the purpose of this petition being whether the petitioners had any ceasement rights as claimed in the suit. The said issue was, however, not pressed and the suit was dismissed on 19-3-1978. On appeal the findings of the trial Court were confirmed by the learned Second Additional District Judge, Hyderabad, as per judgment dated 27-7-1980 which was challenged before the High Court in revision. The learned High Court found that the petitioners' claim with regard to the right of easement was vague and even otherwise no fault could be found with the impugned judgment, because the petitioners had given up their plea in this behalf at the trial stage. As no ground touching the- exercise of jurisdiction was raised, the revision application was dismissed.
The learned counsel for the petitioners attempted to press this petition only on the ground that no finding was given on the issue with regard to the petitioners' right of easement, as claimed in the suit. When pointed out that the issue in this behalf had already been dropped at the trial stage and could no longer be considered, the learned counsel stated that the counsel appearing for the petitioners at the trial stages had no instructions to give up this issue. The plea is frivolous and cannot be allowed to be raised.
In the circumstances, it was rightly held by the learned High Court that since no ground touching the exercise of jurisdiction had been raised, the revision application was not maintainable. The petition has no merits and is accordingly dismissed.
M.I. /Z-22/S Petition dismissed.