ALI BAIG, J.---Through the instant civil revision petition the petitioners/defendants have assailed the judgment/decree dated 20-11-2018, passed by the learned District Judge Gilgit in Civil 1st Appeal No. 42/2014, whereby the learned appellate court has accepted the civil 1st appeal of the present respondent/plaintif f by setting aside the impugned judgment/decree dated 31.3.2014, passed by the Senior Civil Judge Gilgit.
2. Brief facts giving rise to the filing of the instant civil revision petition are that the present respondent/ plaintif f instituted a suit for recovery of rupees 29,400/- per year along with 16% interest per annum from January 2006, till realization of decretal amount against the present petitioners/defendants in the trial court claiming that the plaintif f/ respondent is owner of agricultural land under Khasra No.1999 Khewat No.1808 measuring one Kanal 13 Marlas situated at Majini Muhallah Gilgit. He has further averred in the plaint that the defendants/ petitioners had approved a drainage line project and it was executed./ constructed by the petitioner/defendan t No.4. The petitioner/defendant No.4 did not complete construction work of aforesaid project in time and due to which the drained water ponded/accumulated in the field/land of the respondent/plaintif f and could not cultivate crops in the said land and accordingly , the plaintif f/ respondent sustained the aforesaid loses/damages, therefore, the respondent/ plaintif f is entitled to get the aforesaid suit amount from the petitioners/ defendants.
3. The present petitioners Nos.2 to 4 being defendants in the suit contested the suit by filing of their joint written statement in the trial court wherein they have raised certain legal objections and have also repudiated the averments of plaint.
4. It is pertinent to mention here that the petitioner/defendant No.1 had failed to file written statement, in the trial court therefore, the learned trial court has struck of the right of petitioner/defendant No.1 of filing of written statement vide order-sheet dated 25-8-2009 and the petitioner No.1 has also failed to file any appeal or revision against the aforesaid order of the trial court in any higher judicial forum.
5. Any how , out of divergent pleadings of the parties, the learned trial court has framed the following issues:-
1. Whether the defendants have left the drain near the land of the plaintiff which has led to collection of water on plaintiffs land and has rendered plaintiffs land uncultivable? OPP
2. Whether the plaintiff has sustained Rs.29,400/- damages per year? OPP
3. Whether the suit of plaintiff is liable to be dismissed under Order VII, rule 1 1, CRC.? OPD
4. Whether the plaintiff has no locus standi and cause of action to file the suit hence the suit is liable to be dismissed? OPD
5. Whether the story of plaintiff in the suit regarding flow of drain water on his land is false and no any damages are caused to the plaintiff? OPD
6. Whether the plaintiff is entitled for the decree as prayed for? OPP
7. Relief
6. After framing of the above mentioned issues the parties led their respective evidence in the trial court. The plaintif f produced two oral witnesses namely Negahban Shah son of Noor Muhammad Shah and Nazar Baig son of Hub-e-Ali besides recording of his own statement in the trial court. Likewise the petitioners/defendants Nos.2 to 4 have produced one oral witness and have got recorded their statement through their legal advisor Mr. Ali Nazar Advocate.
7. On conclusion of trial the learned trial court vide judgment/decree dated 31.3.2019, had dismissed the suit of plaintif f/present respondent which was challenged before the court of learned District Judge Gilgit through a civil 1st appeal by the plaintif f/respondent. The learned District Judge Gilgit after hearing arguments on behalf of both the parties has allowed the civil 1st appe al of the present respondent/plaintif f vide the impugned judgment/decree dated 20.1 1.2018, by ,setting aside the judgment/decree passed by the learned trial court.
8. Feeling aggrieved and dissatisfied with the impugned judgment/decree passed by the learned 1st appellate court, the petitioners have preferred the instant revision petition in this court.
9. The learned Addl. Advocate General and Legal Advisor of PWD appearing on behalf of the petitioners/ defendants contended that the impugned judgment/decree passed by the learned 1st appellate court is contrary to law and facts on the record of the case as such the impugned judgment/decree passed by the learned 1st appellate court is not maintainable and liable to be set aside. The learned Addl. A.G. and Legal Advisor PWD further argued that the impugned judgment/decree passed by the learned 1st appellate court is result of misreading and non-reading of evidence of the parties, thus, the impugned judgment/decree passed by the 1st appellate court is not sustainable in the eye of law. The learned counsel for the petitioners further argued that the disputed project was executed by contractor Ghulam Ali who was necessary party to the suit, but the plaintif f/ respondent has failed to implead the above named contractor as a defendant in the suit thus, the suit of the plaintif f/respondent was not maintainable due to non joinder of the necessary party .
10. On the other hand the learned counsel for respondent/plaintif f controverted the arguments advanced by the learned Addl. Advocate General and Mr. Jaffar Ali Advocate, Legal Advisor PWD by contending that the learned trial 1st appellate court has rightly passed the impugned judgment/decree in favour of the respondent/ plaintif f after proper evaluating of the evidence produced by the parties which may be maintained. The learned counsel for the respondent further argued that the petitio ner No.1 had failed to file written statement in the trial court and right of filing of written statement of petitioner No.1 has-been struck off by the learned trial court vide order dated 25.8.2009, and petitioner No.1 has not filed any appeal or revision against the aforesaid order of the trial court in any higher judicial forum i.e. in the District Court and this court hence, the petitioner No.1 is estopped by his conduct and admission to file the present appeal in this court. The learned counsel for the plaintif f/respondent further argued that the petitioners Nos.2 to 4 have not filed any appeal in this court as neither any departmental representative of petitioners Nos. 2 to 4 nor Legal Advisor of petitioners Nos.2 to 4 have signed on the memo of revision petition filed in this court, thus, revision petition is not maintainable which may be dismissed.
11. From perusal of record it transpires that petitioner No.1 had failed to file written statement in the learned trial court despite affording of several opportunities to the learned District Attorney by the learned trial court and consequently the learned trial court has struck off the right of filing of written state ment on behalf of the petitioner No.1 as evident from order-sheet dated 25.8.2009. The petitioner No.1 has not challenged the aforesaid order of trial court dated 25-8-2009, neither in the District Court Gilgit nor in this court, thus, the petitioner No.1 is estopped by his conduct and admission to challenge the impugned judgment/decree passed by A the learned District Judge Gilgit. Moreover , the petitioners Nos.2 to 4 have neither put their signatures on the revision petition nor any departmental representative of petitioners Nos.2 to 4 has appeared before this court except appearance of Legal Advisor of respondents Nos.2 to 4 at the time of final arguments as evident from order-sheets maintained by this court, thus, the respondents Nos.2 to 4 have not assailed the impugned judgment/decree passed-by the learned 1st appellate court through a revision or an appeal in this court.
12. Further more, the respondent/ defendant has proved his claim by adducing two independent/impartial reliable witnesses in the trial court and the petitioners Nos.2 to 4 have failed to rebut the evidence of the Respondent/plaintif f by adducing impartial and reliable witnesses in the trial , court except recording of statement of Mr. Ali Nazar Legal Advisor PWD Department and one Taj Muhammad Assistant Executive Engineer B&R Division Gilgit, thus, their statements are not admissible in the evidence as both the above named persons are employees of respondents Nos.l to 4.
13. For the foregoing reasons no error of law having been pointed out by the learned Addl. Advocate General in the impugned judgment/decree passed by the learned 1st appellate Court, hence, I find no merit in this revision petition or justification to interfere with the findings of facts recorded by the learned 1st appellate court which do not suffer from any inherent infirmity or legal or jurisdictional error. This revision petition is without substance. Hence the instant revision petition is dismissed accordingly . Parties are left to bear their own costs. File.