2021 Y L R 848
[Balochistan]
Before Rozi Khan Barrech, J
DIRECTOR GENERAL CIVIL AVIATION AUTHORITY through Airport Manager,
Quetta ---Petitioner
Versus
MUHAMMAD DAWOOD---Respondent
Civil Revision No. 240 of 2014, decided on 27th December, 2019*.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54--- Civil Procedure Code (V of 1908), S. 96--- Limitation Act (IX of 1908), S.
5---Suit for declaration, permanent injunction and recovery of damages --- Appeal ---
Limitation ---Condonation of delay ---Contentio n of plaintiff was that defendant had violated
terms and conditions of contract ---Defendant adjusted security amount deposited by the
plaintiff against outstanding amount due against the plaintiff ---Suit was dismissed
concurrently ---Validity ---Defendant ha d neither given any particular of outstanding amount
in his written statement nor given any break -up about the said outstanding---No documentary
evidence had been produced by the defendant to the extent of his claim of outstanding amount ---Reason given in the application for condonation of delay that time was spent in
obtaining sanction for filing of appeal was not supported by any document ---Said reason was
not sufficient within the meaning of S.5 of Limitation Act, 1908 ---Trial Court passed
impugned judgm ent and decree on 28.05.2012 and defendant applied for certified copy on
10-07-2012 which was provided on 31- 08-2012 ---Appeal filed by the defendant before the
Appellate Court was barred by time---Defendant had failed to point out any illegality or irregul arity in the impugned judgments and decrees passed by the Courts below ---Revision
was dismissed, in circumstances.
Shams -ud-Din Achakzai for Petitioner.
Barrister Muhammad Anwar Nasar and Muhammad Din Kakar for Respondent.
Date of hearing: 7th October, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Civil Revision Petition in terms of section 115
of The Code of Civil Procedure (V of 1908) (hereinafter referred as "C.P.C.") arises out of
order dated 24.03.2014 (hereinafter "the impugned Judgment") passed by learned Additional
District Judge -II, Quetta, (hereinafter "the appellate Court") while dismissing the appeal
under section 96, C.P.C. filed by the appellant upheld the order dated 28.05.2012 passed by
learned Civil Judge -II, Quetta.
2. Epitomized fact s necessary for adjudication of instant petition are that the
plaintiff/respondent filed a suit for declaration, and permanent injunction and recovery of Rs.3,00,000/ - as damages before the learned Civil Judge -II, Quetta, against the
petitioner/defendants with the averments that the plaintiff/respondent has a registered
Company with the name and style of Haji Dawood and Company, Government Contractor and General Order Suppliers having office Shops Nos.30, 36 located at New Mission Road, Quetta. The contract of disputed parking area duly awarded in favour of plaintiff/respondent
in the year 2008 for the period of three years i.e. 01.07.2008 to 30.06.2009 and 01.07.2009 to 30.06.2011. However, during the contract period of plaintiff/respondent the petitioner/defendants started construction work adjacent at disputed parking area. Construction materials were dumped in the half of disputed parking area due to which plaintiff/respondent suffered loss and who became unable to deposit fee as per agreement. In this re gard by means of application for relaxation in depositing parking fee
plaintiff/respondent requested to petitioner/defendants but petitioner/ defendants did not pay any heed with request of plaintiff/respondent, however, they served a notice vide dated
20.05.2011 to the plaintiff/respondent due to non- payment of license fee of three years, the
security deposit of plaintiff/ respondent worth of Rs.2,57,358/ - has been adjusted against
outstanding of plaintiff/respondent. Due to construction work of adjacent of disputed parking
area, the plaintiff/respondent suffered loss of Rs.3,00,000/ -.
3. The petitioner resisted the suit, being the defendants. While submitting their written
statements they controverted the assertions contained in the plaint and taken plea t hat due to
construction work neither the business of the plaintiff/ respondent has affected nor construction materials were dumped in the half period of disputed parking area, however, the plaintiff/respondent has failed to deposit monthly installments and who are under obligation
to clear the dues of the petitioner / defendants worth of Rs.1,93,000/. From the divergent pleading of the contesting parties, following multiple issues were framed: --
"1. Whether the plaintiff is entitled for the recovery of Rs.3 ,00,000/ - as damages or he has
also to pay Rs. 1,93,000/ - to the defendants due against him?
2. Whether the plaintiff is entitled for the relief claimed for?
3. Relief?
4. After framing of issues, parties to the suit produced their respective evidence and on
completion of the same, the suit of the plaintiff/respondent was dismissed and claim of the petitioner/ defendants i.e. Rs.1,93,000/ - was also declined vide judgment and decree dated
28.05.2012.
5. Being aggrieved from the judgment and decr ee to the extent of claim of Rs.1,93,000/ -
the petitioner/ defendants filed appeal under section 96, C.P.C. before the learned Additional District Judge -II, Quetta, which was dismissed vide judgment dated 24.03.2014. Hence this
petition.
6. I have heard th e learned counsel for the parties and perused the available record with
their assistance.
7. The claim of the respondent/ plaintiff is that due to the construction work of adjacent
of the disputed parking area, the plaintiff/respondent suffered loss of Rs. 3,00,000/ -. On the
other hand, the claim of the petitioner/ defendants is that the plaintiff/respondent has failed to
deposit monthly installments and who are under obligation to clear the dues of petitioner/defendants worth of Rs.1,93,000/ -. The learned t rial as well as appellate Courts
dismissed the suit of the plaintiff/respondent and also declined the claim of the petitioner/defendants. Perusal of the record reveals that the petitioner/defendants neither given any particular of the outstanding amount in his written statements nor given any break-
up about the outstanding. No documentary evidence was produced by the petitioner/ defendants to the extent of his claim of Rs.1,93,000/ -.
8. The appeal filed by the petitioner/ defendants before the appellate Court was also
barred by time. The learned trial Court passed the impugned judgment on 28.05.2012 and the petitioner/defendants applied for certified copy on 10.07.2012 which was handed over to him on 16.07.2012 while the appeal has been filed on 31.08.2012. The reason given in the application under section 5 of the Limitation Act for condonation of delay by the petitioner/defendants before the appellate Court that time was spent in obtaining sanction for filing of appeal is not supported by any document and t he same was not sufficient within the
meaning of section 5 of the Limitation Act.
In view of above observations and concurrent findings of both the Courts below, the
learned counsel for the petitioner/defendants has failed to point out any illegality or irregularity, misreading and non- reading of the facts in the impugned judgments passed by
the learned trial as well as appellate Courts, thus, the petition is dismissed.
ZC/130/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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