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Petitioner: (Mst.) MUSSARAT ARA KHANUM VS Respondent: UMAID ALL And Another
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Mir Muhammad Nawaz Marri Title: (Mst.) MUSSARAT ARA KHANUM vs UMAID ALL And Another Case No.: C. Rev. 216/95 Date of Judgment:1998-10-29 Reported As: K.L.R. 1999 Civil Cases 519 Result: Order accordingly
JUDGMENT
JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, J.- Precisely the facts of the case are that on 14th May, 1989, Umaid Ali son of Bhagan Khan (Respondent No. 1) instituted a suit against petitioner Mussarat Ara Begum daughter of Mukhtar Ahmed Khan and Gahi Khan son of Muhammad Ibrahim (Respondent No. 2), in the Court of Civil Judge, Quetta on averments; that he purchased landed property owned by petitioner measuring 25 acres, description whereof was given in the plaint, through her Attorney Gahi Khan who had registered Power-of-Attorney in his favour, vide Agreement dated 11th January, 1989, at the rate of Rs. 4,75,000/- per acre, totalling to Rs. 1,18,75,000/-. Out of which, rupees one crore was paid to Gahi Khan and in respect of balance amount, it was agreed between them that on the transfer of land in his favour, this amount will be paid, but the attorney of petitioner is reluctant to perform, him part of obligation and in the meanwhile, the petitioner-defendant had revoked the power-of-attorney, but according to him, it would have no effect on the transaction, made between him and the Attorney of petitioner. In the prayer clause, decree was claimed for directions to petitioner and her Attorney to transfer the disputed property on his name, as he is also ready to pay the remaining balance amount of Rs. 18,75,000/- It is to be noted that subject- matter of the suit for payment of Court-fee and jurisdiction was valued at Rs. 110/. Petitioner-defendant filed written statement contesting the suit denying the execution of power-of-attorney dated 13.8.1988 in favour of Gahi Khan and categorically mentioned that it does not bear her signatures and it was executed fraudulently and with the connivance of certain interest high-officials and on coming to know of the said fraudulent act. The same was cancelled, therefore, the suit on basis of
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said Attorney, is not competent and merits dismissal. The contents of the plaint on facts were also repudiated. As for as the respondent Gahi Khan is concerned, he filed separate written statement conceding to the claim of respondent Umaid Ali. The learned Civil Judge, after trial of case, vide judgment dated 17th September, 1992, decreed the suit. 2. It may be noted that during pendency of suit, petitioner submitted an application with the prayer that the disputed power-of-attorney allegedly having her signatures be sent for the opinion of Handwriting Expert. The application was contested by respondent Umaid Ali and the trial Court on he date when the suit was decreed, vide separate order dated 17th September, 1992, dismissed this application. 3. Petitioner preferred an appeal before this Court being No. 42/92 on 10th November, 1992, on which Court-fee of Rs. 15000/- was affixed. After admission of appeal on 12th November, 1992, it remained pending, when on 14th February, 1993, for the first time, learned counsel appearing for Umaid Ali contended that High Court has no jurisdiction to entertain the appeal as it should have been filed before the District Judge. Thus learned Counsel appearing for petitioner prayed for short adjournment and again on the next date i.e. 8th March, 1994, he got postponed the case to study the question of maintainability of appeal. Ultimately on 6th April, 1994, petitioner's counsel submitted an application, explaining the circumstances in which, he filed appeal before the High Court and as a result of the explanation, mentioned therein, he prayed that Memo of Appeal may kindly be returned to Appellant (Petitioner) for its presentation before the proper forum. On this, application, learned Advocate appearing for respondents stated that they have no objection on the return of memo, of Appeal, however, subject to all just legal exceptions. Accordingly the request so made by petitioner's counsel was acceded to and on the even date, appeal was disposed of. In our opinion, it would be proper to reproduce here-in-below the contents of the application which was filed by petitioner's counsel to withdraw the appeal:- "The appellant respectfully submits as under:- 1. That the above appeal is fixed for hearing today. An objection has been raised by the opposite party that the plaintiff has valued the suit at Rs. 110/-. Therefore, the appeal was competent before District Judge in view of Section 18 of the Civil Court Ordinance 1962. 2. That the subject-matter of the suit was specified performance of an agreement having consideration of Rs. 11,87,5000/- and relief was sought for transfer of property after payment of Rs. 11,75,000/- and decree was also passed in the sama manner. The appellant in such view of the matter under bona fide impression and on the advice of counsel filed an appeal before this Hon'ble Court because the value exceeded Rs. 50,000/. The counsel for appellant after thoroughly going through the relevant law placed before this Hon'ble Court realised that the appeal would be competent before the District Judge. The appeal has been prosecuted in the wrong forum under bona fides impression. Therefore, in these peculiar circumstances it would be appropriate and proper that Memo of appeal alongwith annexures may kindly be returned to the appellant for its presentation before the proper forum. The appellant has paid an amount of Rs. 15,000/- towards Court-fee. It is respectfully prayed that memo of appeal may kindly be returned to appellant for its presentation before the proper forum, in the interest of justice.
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Sd/- Appellant through counsel In compliance to the above order, petitioner's counsel obtained the memo of appeal on 3rd May, 1994 and presented it on the same day in the Court of District Judge, Quetta, alongwith an application under Section 5 read with Section 14 of the Limitation Act. Paras 3 and 4 of the application being relevant are reproduced here- in-below. 3. "That the deponent was advised to file appeal before the High Court and she had been prosecuting the same in good faith and under bona fide impression and belief that since the valuation of the subject-matter is an agreement, the consideration whereof is Rs. 1,18,75,000/-, therefore, the jurisdiction lies with the High Court. The advice was surrounded by the counsel in good faith and with due diligence but the confusion arose bn account of averments made in the plaint which prima fade show the valuation of the subject-matter of the suit to be over and above the Precuinary jurisdiction of District Judge. Additionally the term value has been defined in Section 2(h) of the Civil Courts Ordinance which says "that it means, the amount or value of the subject- matter of the suit". The bare reading of the above definition would show that it is the amount or value of the subject- matter of the suit which in the instant case is an agreement, having consideration of Rs. 1,18,75,000/- According to the belief and bona fide impression of deponent, the counsel has acted with due care, caution and diligence. Similarly the deponent believing the advice of the counsel also acted with due care and caution in prosecuting the appeal before the High Court and have thereby spent time in good faith, therefore, the same is required to be excluded. 4. That without prejudice to the above, even otherwise the decree of the trial Court is void and without lawful authority as the lower Court had no jurisdiction to pass the same. The suit filed by the respondent/plaintiff was not competent under the law, cause the same was beyond the scope of Specific Relief Act. Admittedly neither the suit was properly valued for the purpose of Court-fee as well as jurisdiction nor proper Court-fee was affixed. The lower Court has decided the issue of valuation contrary to the provisions of Court-fees Act, 1870 and Suit Valuation Act, 1887, therefore, the impugned decree is void. Apart from above the agreement, subject-matter of suit is the product of fraud and the power of attorney is forged documents, therefore, the trial Court absolutely had no jurisdiction to entertain the suit. Moreover, the respondent/plaintiff has not proved his case, as such the trial Court was not competent to pass the impugned decree which on the face of Tt is a nullity. In view of above submissions the decree of the lower Court is void and without lawful authority, therefore, no limitation would run against the same." The above averments of application were also supported with an affidavit of learned counsel, who appeared on behalf of petitioner before this Court. The application was contested by filing rejoinder. Contents of paras 3 and 4 of the same are also reproduced herein-below:- 3. "That para No. 3 has not been correctly stated, hence it is not admitted as such. It would be important to mention here that the objection regarding the maintainability of the appeal was raised by the counsel for the respondent No. 1 as far back as on 14.12.1993, whereupon the counsel for the appellant sought time to examine this aspect of the case. Another adjournment was obtained by the Counsel for the appellant on 8.3.1994 to study the point of maintainability of the appeal but despite that no steps were taken by the appellant to withdraw the appeal and file the same before the Court of competent jurisdiction till 6.4.1994, when it was conceded that the appeal
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filed before the High Court was not competent. Copies of the order sheets are attached herewith for ready reference. Therefore, in these circumstances it is vehemently denied that the appeal before the High Court was either prosecuted in good faith and under bona fide impression or that the appellant had acted with due care and caution, therefore, in these circumstances the time spent in the High Court cannot be excluded. This is without prejudice to the plea of the answering respondent that even otherwise the appeal has not been filed within time. 4. That para No. 4 has not been correctly stated, hence it is not admitted as such. Without prejudice to the plea of the answering respondent that the decree of the Trial Court was no void and without lawful authority. The appellant had to challenge the same within time by filing appeal. Before the Court of competent jurisdiction. It may be noted that on the one hand the appellant had tried to assert that the appeal was rightly filed in the High Court, whereas on the other hand he has acted to withdraw the same, therefore, he cannot be allowed to blow hot and cold in the same breath. Facts remain that the appeal is hopelessly barred by time and the time spent by the appellant in the High Court cannot be allowed to be excluded specially after 14.12.1993 when objection to the maintainability of the appeal before the High Court was raised during the pendency of the appeal before the Hon'ble High Court of Balochistan. Even after the order dated 6.4.1994 no diligence was shown to immediately withdraw the appeal and file it before this Hon'ble Court." Learned Trial Court while disposing of the application observed as under:- I "Though she has asserted that she acted-in proceedings with due diligence and care but she has not assigned any reason why she took steps so late and as such the time in between 17.9.1992 to 13.10.1992 and 13.10.92 to 10.11.1992, nearly of two months remain without any explanation, Further, a period of nearly four months were taken by the appellant in conceding the objection raised by respondent No. 1 in respect of jurisdiction of the Court. As such the appellant seems to be some how negligent and not take part in proceedings with the diligence care and with full interest. Further after order of return of memo, of appeal made on 6.4.1994 the appellant do not approach this Court immediately rather presented the appeal on 3.5.1994, nearly after assigned. This conduct of the appellant only shows her lack of interest." As a consequence of above observations, the appeal being barred by time was dismissed. As such, instant revision was filed on 2nd August, 1995. 4. When the petition was pending, petitioner filed applications being C.M. Nos. 1314 & 1353 of 1996, respectively. In the former application, permission was sought to raise point of jurisdiction and the latter application was moved under Order VII rule 10 CPC, with the averments that learned District Judge/Additional District Judge-I. Has no jurisdiction to entertain the appeal, because the value of the subject-matter was beyond the jurisdiction of Court and it might have to return the appeal, for prosecution to the proper Forum i.e. The High Court, which is a proper forum. Both the applications were contested. The learned Chief Justice, as then he was, vide order dated 26th November, 1996, observed that in the peculiar circumstances, the petitioner ought to have affixed the Court-fee, for purpose of present Revision petition on the valuation of Rs. 18,75,000/-. Ultimately, following the principle land down in the judgment of Siddique Khan and 2 others v. Abdul Shakoor Khan and 2 others (PLD 1984 SC 289) allowed one week's time to petitioner to make-up the deficiency of Court- fees. Simultaneously respondent-plaintiff was also directed to pay the Court-fee, at the balance consideration, for which, specific performance was sought and he was directed to pay the Court- fee on the plaint, within period of one month. It seems that both the parties have complied with the
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directions, but in the meanwhile respondent Umaid Ali also filed a petition for leave to appeal, being No. 729/96, which now has been disposed of by Hon'ble Supreme Court, vide order dated 11th May, 1998. For convenience, the order is reproduced here-in-below. "Learned counsel for petitioner states that he would not press the petition, if it is observed that the observations made in the impugned judgment, should not effect the mind of learned Division Bench, hearing the case. Petition is dismissed as not pressed." We heard the case and on 7th October, 1998, reserved the Judgment. But when the Judgment was being dictated, it was deemed necessary to fix the case for re-hearing in order to ascertation, the effect of order passed by this Court on 26th November, 1996, in the light of order of Hon'ble Supreme Court, as such, the case was again heard on 15th October, 1998. 5. Mr. Ehsanul Haq, learned Counsel for respondent, contended that the order dated 26th November, 1996. Would have not hearing on the instant proceedings, because as far as the payment of Court-fee on Rs. 18,75,000/- by the petitioner or respondents is concerned, that would not change the valuations clause of plaint, because the Appellate Forum has to be determined under Section 18 of the Civil Courts Ordinance, 1962 and so lor making the payment on valuation of Rs. 18,75,000/- is concerned, it is a question, which rests between the State and the subject in terms of Section 12 of the Court-fees Act and particularly in view of the fact that Hon'ble Supreme Court while disposing of petition filed by respondent has observed that the order dated 26th November, 1996, would not effect the mind of Division Bench, hearing the case. Therefore, according to it, this case has to be heard, on taking into consideration the valuation of suit, assessed in the plaint by the respondent-plaintiff. 6. On the other hand, Mr. Yally a Bakhtiar, learned counsel for petitioner, contended that the then learned Chief Justice has determined the value of the suit to be Rs. 18,75,000/- therefore, the Court- fee was paid on it, as such, now it may be presumed that the subject-matter of the suit has been enhanced to the amount, on which, the Court-fee has been paid and in such view of the matter, it is to be deemed that the District Judge or the Additional District Judge, has no jurisdiction to hear the appeal, as such, the appeal is to be heard by High Court.-Therefore, either the earlier appeal filed by petitioner being RFA Mo. 42/92. Should be deemed to be transferred on the file of this Court or present petition be treated as appeal and if there is delay in filing of the same, it may be conducted, in view of the law laid down by Hon'ble Supreme Court in 1995 SCM R 584. 7. We have considered the arguments of learned counsel for parties, on the question of maintainability of revision petition, because learned Additional District Judge has dismissed the appeal, being barred by time. 8. Undoubtedly, vide order dated 26th November, 1996, the then Hon'ble Chief Justice, while dealing with the case singly, had heard both the applications and directed the parties to affix the Court- fees on Rs. 18,75,000/- on the plaint and no memo, of revision and Hon'ble Supreme Court while examining the case, although has dismissed the petition filed by Umaid Ali. But had observed that the observations made in the impugned judgment, should not effect the mind of learned Division Bench, hearing the case. Thus for .Such reason, we are bound to conclude that as far as the payment of Court-fee is concerned, that has been made by both the parties, to discharge their
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liability, which they owe to State and since the valuation clause of plaint has not been amended therefore. Forum for determining the appeal, would be in accordance with the provisions of Section I6 of the Civil Courts Ordinance, 1962. According to which, an appeal from a Decree or order of Civil Judge, shall lie to the High Court, if the value of original suit, in which the decree or order was passed, may exceed Twenty five hundred thousand rupees. Admittedly, in the instant case, the valuation for the purpose of Court-fees and jurisdiction was at Rs. 110/. In the earlier round of litigation before this Court, in RFA No. 42/92, learned counsel, who at that time appeared on behalf of petitioner namely Hadi Shakeel Ahmad, submitted an application, 'that the appeal has been prosecuted in the wrong Forum under bona fide impression, therefore, under these peculiar circumstances, it would be appropriate and proper that memo of Appeal alongwith annexures may kindly be returned to appellant for its presentation before the proper forum. Meaning thereby that at that time, petitioner herself through her counsel realized that appeal is not competent before the High Court. Therefore, its memo was taken back and it was filed in the Court of District Judge, alongwith an application under Section 5 of the Limitation Act. In the application, it was stated that according to the belief and bona fide impression of the deponent the counsel has acted with due care and caution in prosecuting the appeal before the High Court and have thereby spent time in good faith, therefore, the same is required to be excluded. The application was vehemently opposed by the respondent Umaid Ali, categorically mentioning therein, that proceedings before the High Court were not prosecuted with due care and caution, as it was mentioned therein, that in the High Court, the maintainability of appeal was challenged by counsel of respondent No. 1, as back as on 14th December, 1993, whereupon the counsel for petitioner sought time to examine this aspect of the case. Another adjournment was obtained by the counsel for petitioner on 8th March, 1994 to study the point of maintainability of appeal, but title that, no steps were taken by the petitioner to withdraw the appeal and filed the same before the Court of competent jurisdiction, till 6th April, 1994, when it was conceded that the appeal filed before the High Court was not competent. Therefore, under these circumstances, the time spent in the High Court cannot be excluded. In view of the contest of parties, the appeal was held to be barred by time, by the Additional District Judge, vide impugned order. 9. Now we have to examine, first of all whether combined application under Section 5 read with Section 14 of the Limitation Act, was competent, seeking condonation of time spent before a wrong forum by petitioner? In this behalf, there is no need of detailed discussions, cause now it has been well-settled that provisions of Section 14 cannot be invoked for seeking condonation of delay, in filing the appeal. Reference if needed can be made to the Judgments, reported in 1982 SCM R 425, 1991 SCM R 520, 1991 SCM R 1679 and PLD 1998 Quetta 88. However, Section 5 of the Limitation A64, can be invoked for seeking condonation of delay, as it has been held in the case of Sheerin and 4 others v. Fatal Muhammad and 4 others (1995 SCM R 584), relied upon by Mr. Yahya Bakhtiar, learned Counsel. In the cited case, it has been held that 'if sufficient cause is shown in perusing the wrong remedy, the delay can be condoned.' He also relied on the case of Abdul Rashid and another v. Muhammad Hafiz and another (PLD 1963 W.P. Lahore 414), wherein, on account of bona fide mistake on the part of senior Counsel, the appeal was treated to be Revision, filed in the High Court, and delay if any, was condoned in view of the principles, embodied in section 14 of the Limitation Act. 10. Mr. Ehsanul Haq, learned Counsel contended that to the Superior Courts have consistently held in number of judgments, that Section 14 of the Limitation Act is not applicable and even if condonation of delay is sought, in terms of Section 5 of the Limitation Act, the claimant is bound to
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satisfy that there is sufficient cause in showing the indulgence. In this behalf, he firstly relied on Mrs. Ismat Tariq v. Shaikh Shoukat Ali (1974 SCM R 158), wherein it was held that ' Law having been authoritatively declared by Supreme Court, petitioner could not be said to have not known it or that she had been perusing her application in High Coua with due diligence for grant of fitness Certificate especially when application remained pending in High Court for two years. Petitioner all along assisted by counsel, failure of counsel to take note of law, held, could obviously be attributed only to lack of due diligence on his part. Petitioner could not escape consequences of such lack of diligence' and consequently in this case the delay was not condoned. Learned Counsel, then referred to Mst. Khurshid Begum v. The Settlement Department and others (1976 SCM R 102). In this Judgment, it was held that 'if in the meantime other persons had acquired vested right, those rights could not be taken away, unless valid grounds were made out for condonation of delay.' In this very Judgment, the Hon'ble Supreme Court observed that 'in a civil matter each day's delay has to be satisfactorily explained. 'Learned Counsel then relied on the case of Abdul Ghani v. Ghulam Samar (PLD 1977 SC 102). As this Judgment is highly instructive on the point of invoking a wrong forum by the appellant and then seeking condonation of delay under Section 5 of the Limitation Act, therefore, relevant para therefrom, is reproduced herein-below:- "In order to overcome these self induced difficulties the petitioner has tried to throw the blame on the District Court and on the respondent's Advocate. Thus, for example, he has pleaded in his petition that it was the act of the District Court "which contributed towards expiry of limitation for filing appeal in the High Court". We were astonished by this plea and even more by the fact that it was pressed because it is not Mr. Bilal's case that the petitioner was an infant or lunatic whose interests the Court might have been under some duty to protect. But according to Mr. Bilal, the petitioner had been misguided by the District Court because after admission the 'appeal had been transferred from the Court of the District Judge Multan to that of an Additional District Judge Multan, therefore, the principle actus curiae memonim gravalist was attracted. The argument is fallacious because the transfer was after the petitioner had deliberately filed his appeal in the wrong Court. And, in any case, the attempt to invoke the principle actus curiae memonin gravalist assumes that the Court was under an obligation to advise the appellant how to prosecute his remedies against the respondent, we regret to say that this assumptions is against reason. Mr. Bilal then pointed out that the District Judge had granted an interim injunction to the petitioner. But in the firs' place, his was after the presentation of the appeal. Secondly as the interim order does not refer to the question of the valuation of the appeal, in the circumstances, we are satisfied that the petitioner had not drawn the attention of the District Judge to the fact that he had valued his claim in the trial Court at a sum which was exceeded Rs. 25,000/- No doubt on-a perusal of the memorandum of appeal, if the facts had been correctly stated, the District Judge would have realised that the…
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