Syed Ijaz Shah Vs Khalid Aziz

I

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

RFA No.83-4/2016.

JUDGMENT

Date of hearin g 12.03.2018.

Appellant (Syed Ijaz Shah) by Mr. Muhammad Shoaib Khan, Advocate.

Respondent (Kharid "''?*'o,Xl;,Tll,xT;'j'

SYED ARSHAD AL -/.- Throu gh instant appeal, the appellant has questioned the validity, legality and propriety of judgment and decree dated 21.03.2016 passed by learned Additional District Judge-II, Abbottabad, passed in Civil Suit No. 1l/1 of 2}l3,whereby the learned trial court decreed the suit ofthe respondenUplaintiff for recovery of Rs. 1,221,000/- under Order XXXVII of the Civil Procedure Code, 1908'

2.Briefbut essential facts ofthe case are that the respondent/plaintiff on 04.06'2013 4 instituted a suit for recovery of Rs. 1,221,000/- before the leamed District Judge, Abbottabad' It

was avered in the plaint that the decree holder/ plaintiff was a businessman carrying the business of poultry farm. The respondenV plaintiffused to provide feed at the poultry farm of the defendanVappellant, however, on deferred payment. When an amount of Rs.1,221,000/- were accumulated against the appellant/judgment debtor, he provided a cheque for an amount of Rs.

1221000,- on 03.05.2013. When the

plaintifflrespondent presented the cheque, it was dishonoured, as the defendant's account was closed. On being summoned, the defendant filed an application for leave to defend. In the said application, he challenged the jurisdiction ofthe court and raised a plea that the issue relates to the settlement of account, therefore, trial court had no jurisdiction under Order-XXXVII CPC to adjudicate upon the issue. The leamed trial court allowed the application ofthe petitioner for leave to defend and accordingly the present petitioner filed his written statement' After recording pro and contra evidence, the trial court decreed the suit, vide judgment and decree dated 4l

J

21.03.2016. The said judgment and decree has been assailed through the present appeal.

3.Leamed counsel appearing on

behalfofthe respondent has raised a preliminary objection on the maintainability of appeal being time barred. He has argued that the suit was decreed on 21.03.2016. The appellant filed application for obtaining copies of the judgment and decree on 09.06.2016 which was prepared by the Copying Agency on 14.06.2016, however, the appellant opted to obtain the attested copy of the judgment and decree on 11.11.2016. The present appeal was filed on 24.11.2016. Under Article 156 of the Limitation Act, the period of limitation for filing appeal is 90 days. Hence the appeal is barred by more than 7 months.

4.Appellant, while controverting the arguments of leamed counsel for the respondent, has argued that the period of limitation for this appeal shall be reckoned from 11.11'2016, the date when he received attested copy of the impugned judgment and decree and further ,7 stated that since the impugned judgment and

decree was void, therefore, even otherwise, the limitation does not run against the decree which is without jurisdiction.

5.Arguments heard and record

perused with valuable assistance of learned counsel for the parties.

6.It is evident from the attested copy of the impugned judgment, that the judgment was announced on 21.03.2016. The decree was drawn on the same date by the trial Court. The appellant applied to the Copying Agency for obtaining attested copy of the judgment and decree through application No. 11253 dated 09.06.2016. The plaintiff has not placed on file copy of the aforesaid receipt to ascertain that what date was given by the copying agency to the appellant for the supply of the copy of impugned judgment and decree. However, the stamps available on the attested copy of the judgment shows that the copy was prepared for delivery on 14.06.2016' whereas the appellant received the same on 1 I . I 1 .201 6. The appellant has neither asserted in the memo of appeal, nor r'' has placed on file copy ofreceipt showing that

what date was given to him for delivery of the copy, however, he opted to obtain copy on 11.11.2016. Therefore, the appeal filed against the impugned judgment is hopelessly time barred.

7.Section 12 (2) of the Limitation Act provides that the time consumed in obtaining attested copy ofthe judgment and decree would be excluded from the time 'requisite' for filing an appeal, however, it is a settled position that even during the said interval, i.e. applying for attested copy and the time when the attested copy is ready for delivery, due diligence on the part of litigant is required and there must be no delay on the part of litigant, unless the same is caused by the circumstances over which he had no control "Fateh Muhammad & others Vs Malik Qadir Bakhsh (1975 SCMR 157)' Gul Muhammad vs. Allah Ditta (PLD 1960 Lah.

443), MuhammadAfzal Vs Islamic Republic of / Pakistan (PLD 1968 Lah. 1205)' West Pakistan Industrial Development Corporation Vs. Aziz Qureshi (PLD 1973 SC 222), Mst. Jameela Khatoon Vs. Mst. Taiunnisa (PLD 1984 SC

208)ancl Canlonment Boartl, Harian Cantt: Vs Muhammad Shafi (PLD 1991 SC 400)".

8.Therefore, the appeal of the

appellant is patently time barred.

9.In the interest ofjustice, the claim of the present petitioner was also considered on merit. The delivery of impugned cheque for an amount of Rs. 1221,000A and business relations of the parties are not denied. The impugned cheque and the endorsement of the bank was produced by Qazi Ajmair Khan, Bank Officer UBL as PW-I. In support of his claim, the plaintiffldecree holder appeared as PW-2 and also produced Muhammad Farid Awan as PW-

3.Against that, the petitioner did not appear in the witness box, rather produced his brother Syed Afzal Shah as his attomey. However, in his cross-examination, he has shown ignorance about business relations between the parties' The petitioner could not produce any evidence to discharge his burden that the impugned cheque was given as security and not for fulfilment of any obligation. Under Section I 18 of the y''i Negotiable Instruments Act, presumption is

attached to the negotiable instrument that the same was given and executed for valuable consideration. The plaintiff/decree holder by producing the original cheque and Bank Officer had discharged his initial burden whereas the judgment debtor did not opt to appear in the witness box or to produce any other witness in support ofhis plea that the cheque was executed and handed over to the plaintiff as security, therefore, even on merit, the findings of the leamed trial court can't be disturbed.

10.Accordingly, this aPPeal being bereft of merits as well as being hopelessly time barred, stands dismissed

ANNO UNCED

12.03.2018. f,<'?

JADGE

Tujoil/a Hon'ble Justice Syed Arshod Ali.