Niaz Muhammad Khan & others Vs Faiz Muhammad Khan & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

ABBOTTABADBENCH

(Judicial Department)

Civil Revision No.600-A/2019

For petitioner (Niaz Muhammad Khan etc.) by:Mr. Junaid Anwar Khan, Advocate.

For respondents (Faiz Muhammad Khan etc.) by: Mr. Muhammad RafiqueYousaf, Advocate.

Date of hearing 24.02.2025

JUDGMENT

MUHAMMAD FAHEEM WALI, J.-Through this Civil Revision, filed under Section 115 CPC, the petitioners have assailed judgment and order dated 14.11.2019, passed by learned Additional District Judge-II, Mansehra, whereby the application filed by the petitioners under Section 12(2) CPC was dismissed being time-barred.

2.Succinct facts of the case are that Faiz Muhammad Khan etc. filed a civil suit No. 178/1 on 30.07.2007, seeking declaration etc. to the effect that they belong to the tribe TitwalSirkheli Swati and Sirkheli tribe is further divided into four sects i.e. Admakheli, Pelakheli, Jogakheli and Sadoch. It was further contended that though the

Sadochsect was entitled to 1/4th share in the properties of the TitwalSirkheli Swati, however, in MauzaBaffa, they were deprived of their such right. The suit was tried by the learned trial Court and was ultimately decreed by the learned Civil Judge-V, Mansehra, vide judgment and decree dated 15.12.2010. The appeal against the said judgment was dismissed by the learned appellate Court/Additional District Judge-II, Mansehra, vide judgment dated 19.01.2013 and thereafter, execution petition was filed by the plaintiff Faiz Muhammad Khan etc. During pendency of execution petition, the petitioners herein filed an application under Section 12(2) CPC before the learned Civil Judge-VI, Mansehra, claiming therein that despite being necessary party, they were not impleaded in the suit and thus the decree was obtained by fraud and misrepresentation. The learned trial Court allowed application under Section 12(2) CPC, vide order dated 22.03.2014, where against revision petition was filed by Faiz Muhammad Khan etc. before the learned Revisional Court. Learned Revisional Court, vide judgment dated 15.12.2016, allowed the revision and directed the learned lower Court to return application under Section 12(2) CPC to the petitioners. Accordingly,

learned Civil Judge-VI, Mansehra ordered return of 12(2) CPC application on 22.12.2016. The petitioners then filed fresh application under Section 12(2) CPC before the learned Additional District Judge-II, Manshera on 23.12.2016 with an application for condonation of delay.

Learned Additional District Judge-II, Mansehra, vide impugned order dated 14.11.2019, dismissed the application under Section 12(2) CPC, by holding the same to be barred by limitation. Feeling aggrieved, the petitioners have approached this Court through instant Civil Revision.

3.Arguments heard and available record gone through.

4.Upon scrutiny of the case record as well as the case law cited by learned counsel for the parties, the question for determination before this Court is “Whether the delay caused by the present petitioners, by pursuing their application under Section 12(2) CPC could legally be condoned?”.

5.In view of the judgment delivered by the apex Court in the case of “ShahzadiMaharunisa and another v.sMst.

Ghulam Sughran and another” (PLD 2016 SC 358), it is clear that application under Section 12(2) CPC can only be

maintained before the Court which has finally decided the controversy. Admittedly the initial decree in the instant case was passed by the learned Civil Judge-VI, Mansehra, vide judgment and decree dated 15.12.2010 and the appeal filed there against was dismissed by the learned Additional District Judge-II, Mansehra, vide judgment dated 19.01.2013. Therefore, in the light of above referred judgment of the apex Court in the case of ShahzadiMahrunisa, the judgment and decree of the learned trial Court stood merged into the judgment of learned appellate Court and thus the forum, where application under Section 12(2) CPC could legally be filed, was the Court of appeal i.e. the Court of learned Additional District Judge-II, Mansehra.

6.Coming to the pivotal question, the petitioners filed application under Section 12(2) CPC before the learned Civil Court on 04.03.2013 and the same was allowed by the learned Civil Court on 22.03.2014. The Revision filed against the order of learned civil Court was allowed by the learned Revisional Court on 15.12.2016, by holding that the application under Section 12(2) CPC was maintainable before the learned appellate Court and thus ordered learned civil Court to return the application under Section

12(2) CPC to the petitioners. The learned Civil Court passed order for the return of petition under Section 12(2) CPC on 22.12.2016 and the petitioners filed fresh application under Section 12(2) CPC before the learned Additional District Judge-II, Mansehra on 23.12.2016, i.e.

the very next day of the order for return of the petition, passed by the learned Civil Court. The petitioners also annexed the already returned application with their fresh application and also sought condonation of delay, through separate application of the same date. The learned appellate Court, while relying on the judgments reported as 2001 SCMR 1254, 1999 SCMR 1892, PLD 1999 Quetta 36 and 2012 SCMR 377, held that the time consumed by the petitioners, while pursuing their application at wrong forum due to ill advice of the counsel was not a sufficient cause for condonation of delay and resultantly, the petition was dismissed, being barred by limitation.

7.In the case of “Abdul Majeed and another Vs.

Ghulam Haaider and others” reported as 2001 SCMR 1254, the appeal was dismissed by the honourable High Court of Sindh on the ground of limitation and it was argued before the apex Court that filing of an appeal in a

wrong Court on account of mistaken advice tendered by the counsel on behalf of the appellant for condonation of delay by itself would not attract section 5 of the Limitation Act but, when the litigant and the counsel had acted with due care ad caution and their conduct did not smack of negligence, the institution of appeal in the wrong forum could constitute a sufficient cause within the meaning of section 5 of the Limitation Act. The honourable Supreme Court of Pakistan, however, has not considered the question of limitation in that very case as evident from para-3 of the judgmentwherein it was mentioned that “We do not consider it necessary in this case to consider the question of limitation as otherwise we are of the view that, on merits, no case had been made out by the petitioners.”

Thus it can safely be gathered that the question of limitation was not considered by the apex Court in the referred judgment.

8.In the case of “Raja Karamatullah and 3 others vs.

Sardar Muhammad Aslam Sukhera” (1999 SCMR 1892), the honourable Lahore High Court had ordered return of appeal for filing the same in the District Court. The order for return of the appeal was filed on 17.03.1987, whereas the appeal was filed in the Court of District Judge on

18.05.1987 and since there was no reasonable explanation for the intervening delay, therefore, the honourable Lahore High Court had refused to condone the delay. The Civil Appeal, filed against the judgment/order dated 16.10.1993 of the honourable Lahore High Court was, therefore dismissed by the august Supreme Court of Pakistan, holding that the appellants have failed to satisfy the apex Court that they had been prosecuting their remedy before the wrong forum in good faith.

9.In the case of “Mst.MussaratAraKhanum vs.

Umaid Ali and another” (PLD 1999 Quetta 36), honourable Balochistan High Court had dismissed the revision petition on merits as well as being barred by limitation. In that particular case, the appeal filed before the honourable High Court was withdrawn on 06th April, 1994 for filing the same before the District Judge and then was filed before the learned District Judge on 03rd May, 1994 and the petitioners failed to show any sufficient cause for the intervening delay in between 06.04.1994 to

10.The case of “Dr. Syed Sibtain Raza Naqvi Vs.

Hydrocarbon Development and others” (2012 SCMR 377), pertains to service matter where, the petitioner, after

dismissal of his writ petition by the honourable Islamabad High Court on 24.06.2011, filed I.C.A on 09.07.2011, which too was dismissed on 22.09.2011 and thereafter, he filed Civil Petition for Leave to Appeal before the apex Court. It was held by the apex Court that under Section 14 of the Limitation Act, time spent in pursuing the proceedings before the wrong appellate forum, cannot be excluded and in case appeal is barred by time, the provisions of section 5 of the Act can be invoked.

11.The scrutiny of the above reproduced case law, relied upon by the learned Revisional Court reveals that the same were distinguishable from the facts and circumstances of the instant case. The matter in hand was an application under Section 12(2) CPC and not appeal.

Section 5 of the Limitation Act, 1908 (the Act) provides for condonation of delay in filing appeal or application for revision or review of a judgment, subject to showing sufficient cause, which reads;

“5. Extension of period in certain cases. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in

force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.”

12.Section 14 of the Act pertains to exclusion of time spent in proceedings before the Court bona-fide, without jurisdiction. For ready reference, Section 14 of the Act is reproduced hereunder;

“14. Exclusion of time of proceedings bona fide in Court without jurisdiction. (1) In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(2)In computing the period of limitation prescribed for any application the time during which the applicant has been prosecuting with due diligence another civil proceedings whether in a Court of first

instance or in a Court of appeal, against the same party for the same relief, shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature is unable to entertain it.”

Section 5 of the Act relates to any appeal or application and under the said Section, the petitioner/ appellant is required to satisfy the Court with sufficient cause for not preferring his appeal or application, within the stipulated period of limitation, so that the delay could be condoned. Section 14 of the Act, on the other hand, is split into two sub-sections. Sub-Section (1) relates to the suits whereas sub-Section (2) is regarding any application.

In the case of “Dr. Syed Sibtain Raza Naqvi Vs.

Hydrocarbon Development and others” (2012 SCMR

377)the apex Court has specified that which of the Section of the Act would apply to proceedings or appeal.

Para-8 & 9 of the judgment, being relevant are reproduced;

“8. On perusal of section 14 of the Act, it appears that time spent in pursuing the proceedings before wrong appellate forum, cannot be excluded, for the purpose of filing of an appeal and in case appeal is barred by

time, the provision of section 5 of the Act can only be invoked, that too, by showing the sufficient cause.

9.The two expressions “due diligence” and “good faith” in section 14 do not occur in section 5 of the Act which enjoins only “sufficient cause”. The expressions “due diligence” and good faith” used in section 14 of the Act cannot be equated with the expressions “sufficient cause” used in section 5 of the Act. If it were so, the Legislature could have used identical expressions in both sections particularly when “good faith” has been defined in section 2(7) of the Act. The power to condone the delay and grant an extension of time under section 5 of the Act is discretionary, whereas under section 14 of the Act, exclusion of time is mandatory on the satisfaction of the condition prescribed in it.”

Section 2(7) of the Act defines good faith as;

“good faith” nothing shall be deemed to be done in good faith which is not done with due care and attention.

In the case in hand, the petitioners had been pursuing their application under Section 12(2) CPC before the wrong forum, therefore, they are required to fulfil the

conditions provided in sub-Section (2) of Section 14 of the Act, i.e. that such proceedings were prosecuted in good faith. If the petitioners succeed to meet out such requirement of sub-Section (2) of Section 14, they would be entitled to get benefit and in case of their failure, such benefit could not be extended to them. The question for determination of forum where an application under Section 12(2) CPC would be maintainable, was decided by the august Supreme Court of Pakistan, in the case of “Nasrullah Khan and others Vs. Mukhtar-ul-Hassan and others” reported as (PLD 2013 SC 478), and in the light of said judgment of the august Supreme Court of Pakistan, the learned Revisional Court, allowed the revision petition filed by Faiz Muhammad Khan etc. and directed the learned Civil Judge-VI, Mansehra to return the application filed by the petitioners under Section 12(2) CPC.

However, the judgment in the case of Nasrullah Khan supra, was delivered by the august Supreme Court of Pakistan on 15th of March, 2013, whereas the petitioners had filed their application under Section 12(2) CPC before the learned Civil Judge-VI, Mansehra on 04.03.2013, i.e.

prior to passing of judgment by the apex Court. Therefore, it cannot be claimed that the petitioners have not acted in

good faith, while pursuing their application before the wrong forum. It is also important to note that the application of the petitioners was entertained by the learned Civil Judge-VI, Mansehra where an objection was also raised by the respondents regarding jurisdiction of the said Court, to entertain such application, as is apparent from the order dated 22.03.2014, passed by the learned Civil Judge-VI, Mansehra. Relevant portion of the order is reproduced hereunder;

“The learned counsel for the respondents/ decree holders strongly agitated that this Court has no jurisdiction to entertain the instant petition because the decree was confirmed by appellate Court and now the powers of entertaining 12(2) petition lies with the appellate Court. Record suggests that the impugned decree was passed by the trial Court and the same was maintained as it is by learned ADJ-II, Mansehra and even no modification was made in it. In this state of affairs, when learned appellate Court only reaffirmed the judgment of the trial Court then the jurisdiction of entertaining the 12(2) petition would lie with trial Court and not with appellate Court.”

The learned Civil Judge-VI, Mansehra, while deciding the question of jurisdiction, also decided main

application of the petitioners, by allowing the same and thereafter, revision was filed before the Revisional Court, where too, the petitioners have been pursuing their case.

The petitioners could not, therefore, be made to suffer from the act of the Court. In the case of “Faqir Muhammad Vs. Khursheed Bibi and others” (2024 SCMR 107), it has been held by the apex Court that;

“In the instant case, it is resonating beyond any shadow of doubt that neither any request was made by the petitioner on its own motion at any belated stage for returning the memos of appeal for presentation in the competent forum nor is it evident from the record that he filed the appeals before the wrong forum due to mala fide intention. On the contrary, it is evident from the record that the Appellate Court at the final stage of the case when the appeals had, in all respects, ripened for hearing and its logical finale, returned the memos of appeal on its own motion, after a considerable period, for presentation in the High Court and consigned the files to the record room. So in all fairness, according to the dictum laid down in the case of Khushi Muhammad (supra), the learned High Court was required to consider the fault committed by the Court on account of which the petitioner has been made to suffer and

whether the benefit of the principle “actus curiae neminemgravabit” should be extended or not, and whether the petitioner has made out the case for condonation with sufficient cause or failed to make out a case in terms of section 5 of the Limitation Act The ground reality is that the petitioner was pursuing the matter diligently and, keeping in mind the original valuation of the suit in the plaints, the appeals were filed before the D&SJ, apparently due to a bona fide mistake. No doubt, the scope and niceties of section 5 and 14 of the Limitation Act are distinct in application and concentration but the purpose is almost the same. Section 5 of the Limitation Act is germane to the extension of period in appeal or application/revision or review of the judgment, or for leave to appeal, or any other application to which this Section is made applicable by or under any enactment and the aforesaid genre of proceedings may be admitted after the period of limitation prescribed, provided the Court is satisfied that the appellate or applicant has brought to light sufficient cause for not preferring the appeal or application within the prescribed period of limitation. On the other hand, section 14 of the Limitation Act pertains to the exclusion of time of proceedings bona fide in a Court without jurisdiction, and, in computing the period of limitation prescribed

for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, whether the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, due to the defect of jurisdiction, or other case of a like nature, is unable to entertain it. Each case has to be decided on its own facts and in the present case, what we have perceived is that the application for condonation of delay was dismissed without any convincing justification, therefore, in the interest of justice and fair play, we feel it appropriate to hold that the petitioner should not have been knocked out on a hyper technical ground rather, in order to advance the cause of justice, the Regular First Appeals should have been heard on merits.”

13.Learned counsel for the respondents also attacked the maintainability of petition under Section 12(2) CPC before the Additional District Judge-II, Mansehra, on the ground that instead of filing the returned memo of petition, the petitioners preferred to present a fresh petition before the Court, which was not maintainable and therefore, would be hit by limitation. No doubt, the petitioner

preferred fresh application, instead of filing the returned memo of petition, however, the returned memo of petition was annexed with the subsequent fresh petition and the fresh petition was in continuation of the former application. This Court in the case of “Sain Muhammad and 4 others vs. Muhammad Aslam and others” (2021 YLR 924 Peshawar), has held that;

“Now turning to the 5th contention of the learned counsel for the appellant that this court had returned the application filed by the respondent No. 1, making all those endorsement which are provided under the law, and being a public document it could not have been retrained by him and he is debarred from presenting a fresh petition and if so the fresh petition was barred by time. This contention of the learned counsel for the appellants is based on misconception. There is no bar either under Order VII, Rule 10, C.P.C. or in any other provisions of C.P.C., which precludes the plaintiff/of applicant as the case may be from filing fresh suit in case the plaint or application filed earlier in the court is returned on the ground that the court had no jurisdiction in the matter but subject to limitation. I, therefore, hold that the application filed before this court having been returned on the ground that it had no

jurisdiction in the matter and filing of a fresh application before the learned District Judge for all intent and purpose, is merely a continuation of the old proceedings in the former court. In this contest reliance can be placed on the judgment reported as “Mst. Huwabai and 6 others v. Abdul Shakoor and 8 others” (PLD 1981 Karachi 277). View, expressed in the above referred case, was approved by the Hon’ble Supreme Court of Pakistan in Abdul Shakoor’s case (1982 SCMR 867). Reliance may also be made on the case reported as “Messrs Pakistan Agro Forestry Corporation Limited v. T.C PAF Pakistan (Pvt.) Limited and others” (PLD 2003 Karachi 284).”

14.No lapses were found on behalf of the petitioners, while pursuing their application before the wrong forum, i.e. the Court of learned Civil Judge-VI, Mansehra. The application under Section 12(2) CPC was entertained and decided by the learned Civil Judge-VI, Mansehra. Upon decision of revision petition by the revisional Court, the learned Civil Judge-VI, ordered return of petition under Section 12(2) CPC on 22.12.016 and the petitioners filed application under Section 12(2) CPC before the learned Additional District Judge-II, Mansehra on 23.12.2016, which was well within time. The time consumed in

pursuing the application before the learned Civil Judge-VI, Mansehra, was required to have been excluded, because the petitioners were able to establish that the proceedings were being pursued before the learned Civil Judge-VI, Mansehra in good faith and secondly, they could not be made to suffer due to act of the Court, because in view of the findings rendered above, it was also the duty of the Court to have returned the petition to the petitioners for its presentation before the Court, having jurisdiction in the matter, while the learned Civil Judge-VI, Mansehra, instead of returning the petition, entertained and decided the same.

15.In view of the aforementioned facts and circumstances, this Court reaches to a conclusion that the impugned judgment passed by the learned Additional District Judge-II, Mansehra, dated 14.11.2019 was based on wrong application as well as misinterpretation of law, which is not maintainable, hence, set at naught and while allowing the instant civil revision, the application under Section 12(2) CPC filed by the petitioners, stands restored and remanded back to the learned Additional District Judge-II, Mansehra, to decide the same on merits and in accordance with law.

Announced.

JUDGE

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