Abdul Hadi etc vs Bakht Syed etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

RFA No. 78-M of 2014

JUDGMENT

Date of hearing: 26-01-2015.

Appellants:- (Abdul Hadi & 1 another) by Syed Haider Shah, Advocate.

Respondents:- (Bakht Syed & 1 another ) by M/S Ikram Ullah Khan & Syed Muhammad Durani, Advocates.

MALIK MANZOOR HUSSAIN, J.- This appeal has been preferred against the judgment dated 1-11-2014, passed by the learned trial Court, whereby an application for setting aside ex-parte decree filed by the appellants was dismissed.

2.Briefly stated the facts of the case are that respondents filed a suit against the appellants for recovery of Rs. 42, 10,000/-. An ex-parte decree was passed in favour of the respondents on 12-5-2014. The appellants preferred an application for setting aside an “Nawab steno”

ex-parte decree on 12-9-2014, which was dismissed through judgment dated 1-11-2014. Against the said judgment, the appellants preferred an appeal before the learned Additional District Judge, Samar Bagh, Dir Lower and on 28-11-2014 an application was filed by the appellants for return of appeal to be presented before the proper forum. The appeal was returned to the appellants on 28-11-2014 with the direction to approach the proper forum, however, strangely enough, instead of re-submitting the same appeal before proper forum; the appellants filed fresh appeal before this Court on 22-12-2014 against judgment dated 01-11-2014.

3.Though today CM No. 1010-M of 2014 with regard to condonotion of delay was fixed for hearing, but on notice the learned counsel for respondents raised a preliminary objection in respect “Nawab steno”

of maintainability of instant appeal on the point of limitation. It was further contended that the time consumed in prosecuting an appeal, filed before the wrong forum cannot be counted in favour of the opposite party. He further submitted that Under Section 5 of Limitation Act, the expression “sufficient cause” means “circumstances beyond control of party concerned” and nothing shall be deemed to be done in good faith, which is not done with due care and attention.

This fact alone is sufficient to hold that ‘sufficient cause’ for delay in filing an appeal before wrong forum is not shown. Even otherwise, filing of an appeal before wrong forum, would always be considered fault of the appellants and for which the opposite party .i.e. the respondents cannot be blamed, as it would amounts to vex twice a person for the same cause.

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4.Perusal of record reveals that decree was passed against the appellants for Rs. 42, 10,000/- on 12-5-2014. Appellants preferred appeal against the decree before learned District Judge and same was returned for lack of jurisdiction on 28-11-2014, with the direction to approach proper forum. Strangely enough that without permission of any Court, a fresh appeal was filed before this Court on 22-12-2014 as against filing of the original appeal, which was returned to the appellants for re- submission of same. Furthermore, appeal was not filed immediately after return but it consumed a period of about one month to approach this Court. The learned counsel for the appellants tried his best to cover his case under the umbrella of Section 14 of Limitation Act, 1908, but failed to convince the Court about applicability of same.

5.It is well settled by now that benefit of Section 14 of Act ibid could not be extended to “Nawab steno”

exclude time consumed in prosecuting an appeal before wrong forum, having no jurisdiction, as the legislature specifically excluded appeal or application from the purview of the “suit”. The wordings inserted in Section 14 are itself very clear on issue which reads as under:-

(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 proceedings, whether in a Court of the 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 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 proceeding 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.

6.On perusal of above referred Section 14, it is manifest that time spent in pursuing the suit “Nawab steno”

or application can be condoned but not the proceedings before wrong appellate forum.

Legislature has specifically excluded the appeal from the purview of “Suit”. Reliance can be placed on the case of “ Raja Karamatullah & 3 others VS Sardar Muhammad Aslam Sukhera” (1999 SCMR 1892) and latest view reported in the case of “Dr. Syed Sibtain Raza Naqvi VS Hydrocarbon Development and others” (2012 SCMR 377). In the earlier referred case of Raja Karamatullah, the Honouable Supreme Court further hold that provisions of Sections 5 and 14 of Limitation Act, 1908 would come into play only if delay appeared to be condonable because of appellants prosecuting case with diligence, thus, time consumed in pursuing appeal in wrong forum was not condoned under section 5 of Limitation Act, 1908. Reliance was placed on “Illahi Baksh VS Bilqees Begum” “Nawab steno”

(PLD 1985 Supreme Court 393) case wherein any legal advice given by the advocate negligently, carelessly and without application of mind was not considered a sufficient justification for the condonation of delay.

7.Besides all the referred law and rulings of the Hon’ble Supreme Court there is also another vital aspect of the matter in issue .i.e. the conduct of appellants themselves. As per their application for setting aside decree, they came in the knowledge of decree on 22-7-2014, but strangely enough they filed application on 12-9-2014. The period of limitation start running from 22-7-2014 and prescribed period to file application was 30-days and the last date to file was 22-8-2014. Even if it is considered that due to summer vacation, the application could not have been filed before 01-9-2014, but after end of vacation, the appellants “Nawab steno”

should have filed the same on the opening day .i.e.

2-9-2014 and after that each and every day should have been explained that why it took to wait for 12-9-2014. Another aspect noted is that the appeal was returned to be re-submitted to the proper forum on 28-11-2014 but a fresh appeal was filed on 22-12-2014, which was the hurdle in the way of the appellants not to resubmit the returned appeal or even the fresh appeal immediately after return is not explained by the appellants and the period from 28-11-2014 to 22-12-2014. No sufficient or plausible explanation is forwarded and on this score also the application for setting aside decree as well as appeal filed before this Court is not maintainable, as valuable right accrued to the other side due to act and omission of appellants, which cannot be snatched.

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In view of what has been observed above, this appeal alongwith applications moved in the shape of CMs are dismissed, being without force of law.

Announced Dt: 26-01-2015. JUDGE

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