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2009 C L C 262

 

[Karachi]

 

Before Mrs. Qaiser Iqbal, J

 

Mrs. SAFIA SIDDIQ—-Appellant

 

Versus

 

Haji FAZAL-UR-REHMAN and 2 others—-Respondents

 

IInd Appeal No.36 of 2006, decided on 7th November, 2008.

 

 

Siddiq Mirza for Appellant.

 

Khalid Mehmood for Respondent No.2.

 

 

ORDER

 

MRS. QAISAR IQBAL, J.—This IInd Appeal is directed against the judgment dated 20-5-2006 passed by IVth Additional District Judge (East) Karachi in Civil Appeal No.119 of 2005, whereby the appeal filed by the respondent No.1 was allowed and the judgment passed by the Senior Civil Judge in Civil Suit No.514 of 2002 decreeing the appellant’s suit as against the respondent No.1 was dismissed.

 

Succinctly the facts leading to the case are that the appellant since 1981, was working as Assistant Secretary to the Sindh Workers Welfare Board (hereinafter refer as the Board) i.e. respondent No.3. The Secretary of the Board was being appointed on deputation basis from the Labour Department of Government of Sindh. However, after imposition of ban by the Federal Government, the appellant was assigned additional charge of Secretary on 12-6-1997 and thereafter was confirmed as permanent Secretary of the Board on 12-7-1997. Appellant worked as Secretary to the Board uptil 2000 under the control of the Director Labour (A&F). However, when the post of Secretary was reactivated she was demoted to BPS-17 and was forced to work as lady instructor. However, the appellant did not accept the said demotion and challenged the demotion order before Federal Service Tribunal vide Appeal No.478 of 1999 which is still pending. On demotion of appellant, one Mr. Salahuddin Mughal was appointed as Secretary to the Board, on deputation at ad hoc basis.

 

Soon after taking over charge as Secretary by breaking open the lock, Salahuddin Mughal became the blue eye person for the then Secretary Labour. Mere reversion of appellant was not a sufficient for acrimonious satisfaction for the officials of the Board and Labour Department, they planned permanent elimination of appellant from the service of the Board and firstly they started a campaign of constant harassment of the appellant by issuing illegal explanation letters through the Section Officers of the Labour Department, complaints to Anti-Corruption Department, Government of Sindh. Letter to the high officials, while falsely imputing and uttering fabricated charges including illegal allotment of plots. Even, the then Secretary Labour issued a show-cause notice for taking disciplinary action against the appellant for dismissal from service.

 

Appellant was being victimized and exposed to administrative tyranny for the period when she performed duties as Secretary in BPS-18, that too under the direct control/supervision of Director (A&F). She was made scapegoat/discriminated and was being terrified to the ulterior objective that either the appellant should resign or be dismissed from the services of the Board so that the post of the Secretary should become vacant and be filled-up through deputation/illegal posting by the officials of the Labour Directorate to the prejudice of service right of appellant.

 

In the year 2002, Governor of Sindh formed an inspection team for inquiry and investigations into illegal allotments of the plots of the Board. This fact was communicated by the officials of the Board as well as the husband of the appellant on 8-3-2002 that some inquiry is being conducted against Mr. Salahuddin Mughal, then Secretary of the Board regarding corruption committed by him, the attendance of the appellant before the Investigation Team may be required as a witness.

 

Appellant was never officially communicated to participate in the inquiry proceedings despite of communication address furnished by the applicant, as such no statement of the appellant was recorded by the Inspection Team.

 

The respondents Nos.1 and 2 are the land grabbers mafia of Korangi, they in active connivance of the officials of the Board, in the year 2001-2002, firstly committed forgery of the allotment letters, coined the officials seal of the Board, used it on forged documents for the purpose of illegal sale of unallotted plots, to cover their illegalities, planned a complaint against Mr. Salahuddin Mughal, and got referred the same to the Governor’s Inspection, Enquiries and Implementation Team. The Governor’s Inspection Team finalized the ex parte report on the basis of the complaint Team finalized the ex parte report on the basis of the complaint made by the respondents Nos. 1 and 2 in which appellant was falsely implicated in the scam of forged allotment in the Board.

 

So-called report prepared by the Governor’s Inspection is based on the false statements given in absence of the appellant by the respondents before Mr. Ikhlaq Ahmed, one of the member of Governor’s Investigation, Enquiries and Implementation Team. The respondents Nos. 1 and 2 have done so with ulterior motive to retain ill-gotten money which these respondents grabbed from innocent citizens by committing acts of forgery of allotment letters and power of attorney and other documents of the Board.

 

Apart from above false implication to achieve the ulterior design, the respondents defamed the appellant and scandalize the fabricated story in the press, which has come to the knowledge of every citizen of the city. The appellant, before registration of formal F.I.R., filed Civil Suit No.514 of 2002 against the respondents Nos.1 and 2 on the basis of their false and implicating statements before Inspection Team, seeking following relief:–

 

(a) To declare that the defendants are involved in the illegal sale of plots of the Board through fake documents and in order to cover their illegal gains with mala fide intentions have implicated the plaintiff.

 

(b) To pass a money decree in favour of plaintiff against the defendants for an amount of Rs.2.5 million (i.e. Rupees twenty-five lacs).

 

(c) Grant any other appropriate additional relief to the plaintiff, which under the facts of the case will serve the purpose of proper administration of justice.

 

After service of summons, the respondents Nos.1 and 2 filed their written statements. On the basis of the pleadings, the trial Court framed following issues:—

 

(1) Whether no cause of action was accrued to the plaintiff to file instant suit against defendants,

 

(2) Whether the Court got no jurisdiction to proceed with the matter?

 

(3) Whether officers of the Board malafidely deprived to be promoted or posted at Secretary to the Board?

 

(4) Whether by any act the defendant has caused any damages to the person of the plaintiff as such are liable to pay damages to the tune of Rs.2.5 million?

 

(5) Whether the plaintiff is entitled to the relief as prayed for?

 

Mr. Siddiq Mirza learned counsel for appellant has raised following points in support of the appeal:—

 

(1) First Appellate Court did not consider the point of limitation as appeal was hopelessly time-barred, as court-fee was not paid within the time prescribed under the law.

 

(2) Without recording any reasoning on the ground of maintainability of the suit the First Appellate Court has proceeded to dismiss the suit.

 

(3) Impugned judgment is based upon non-reading of the evidence adduced by the parties, therefore, not sustainable in law.

 

Adverting to the first contention of Mr. Siddiq Mirza, it was legal obligation of the respondent No.1 to pay the court-fee in the First Appellate Court, section 149, C.P.C. has been applied time and again, innumerous opportunities were afforded to defaulting party to pay the court-fee even then the orders were not complied with so much so the appeal was dismissed for non-prosecution along with application for payment of court-fee on 26-2-2005, an application for restoration was filed, the suit was restored almost six months of the above order on the same day the court-fee paid by the respondent No.1. In this context reliance has been placed in the case of Muhammad Siddiq Khan v. Abdul Shakoor Khan PLD 1984 SC 289, Muhammad Boota v. Farzand Ali 1980 CLC 1124. In case of Executive Engineer v. Muhammad Nawaz Khan and Company PLD 1994 SC (AJ&K) 32 while dealing with the same objection it has been held that there are two views on the question whether limitation for filing a suit or appeal has any nexus for making a court-fee. The view of Honourable Supreme Court of Pakistan is that bar of limitation is not a factor in context of the failure of a party to supply proper court-fee under the Court Fee Act and section 149 and Order VII, rule 11 of the Code of Civil Procedure. The August Court in Muhammad Rafiq’s(sic) case cited (supra) has observed as under:—

 

“Section 149, C.P.C. has no reference to the explanation of time for payment of court-fee. It only refers to the permission to pay the court-fee which could be paid at any stage on the basis of exercise of discretion vested by the section. If payment of court-fee is made as a consequence of the permission granted by the Court on the memo. of appeal it would have the same force and effect as if such court-fee was paid at the time of filing of the appeal.”

 

It is well-settled law that mere poverty or ignorance or inability to pay full court-fee at time of presentation of a suit or appeal is not a ground for seeking indulgence of the Court under section 149, C.P.C. The appeal before the First Appellate Court was filed, along with an application under section 149, C.P.C. for extension of time for payment of court-fee which was granted time and again suit the suit was dismissed in default and was restored after six months, with the revival of the suit the application under section 149, C.P.C. was also allowed and the fee if so paid by the respondent No.1 on the same day. In the circumstances of the case the respondent No.1 was not only negligent but his conduct was contumacious and there existed no reason to show any indulgence to him for payment of court-fee on the memo. of the appeal after the expiry of period of limitation. It is an admitted fact that the appeal remained dormant for a period of six months until it was restored to its original position. The learned trial Court condoned the delay recklessly exercised the discretion without taking into consideration the provisions of Limitation Act without applying its mind carefully, negligence or mala fides on the part of the respondent No.1 and indulgence ought not to have been shown. In support of the above contention reliance is placed in the following case-law:—

 

(1) State Life Insurance Corporation of Pakistan v. Messrs Zainab Khatoon and 5 others 1997 PLC 489; (2) Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919; (3) H. Feldman v. Province of East Bengal PLD 1970 Kar. 295 and (4) Almas Ahmad Faiz v. Secretary, Government of Punjab Housing and Physical Planning Development Lahore 2006 SCMR 783.

 

The rule enunciated in the above authorities has clearly laid down that explanation in terms of section 149, C.P.C. cannot be allowed to be condoned after the expiry of the period of limitation, condonation c of the delay to pay the court-fee after the expiry of the period of limitation tantamount to destroy the provisions of limitation and for keeping the parlance between the two statements, the discretion ought to have not been exercised without independent application of the mind more particularly when the respondent No.1 was guilty of contumacious conduct based upon negligence and mala fides therefore, the respondent No.1 was required to pay’ court-fee before the First Appellate Court within the limitation provided under the law as such the impugned judgment is not sustainable in law.

 

Adverting to the merit of the case the appellant was charged in misappropriation and allowed Industrial Plots meant for Industrial Worker, one false complaint was made by one Muhammad Akram thereafter appellant filed suit for cancellation of the Document No.1115/95 which was decreed. The respondent resident of Korangi area became inimical and a complaint was lodged by Khurshid Labour Leader against illegal allotment of the plots by the then Secretary. The inquiry was held statement of the respondent No.1 was recorded by the Inquiry Officer, during the period of inquiry the appellant was posted in the board as Secretary as she was intentionally involved in the matter of illegal allotment of the plots. The respondent No.2 levelled false allegations against the appellant in the inquiry Exh.P.17 as well as in Exh.P.19 the appellant’s allegations were levelled to involve, the appellant in illegal sale and purchase of the plots of the board. The statement of the appellant has gone unchallenged and unrebutted before the trial Court so far as the quantum of damages is concerned the same properly determined by the trial Court the appellant has suffered the agony of torture and malicious transaction in the litigation launched against her before the Anti-Corruption Court Provincial, Karachi culminating in her acquittal. In view of what has been discussed above, I am of the view that the impugned judgment is not sustainable in law, which is hereby set aside and the judgment and decree recorded by the trial Court as against the respondent No.1 is hereby maintained. The respondent No.2 was proceeded ex parte, the judgment passed by the trial Court as against him was not assailed, before First Appellate Court, the judgment of the trial Court. With the above observations IInd Appeal No.36 of 2006 stands allowed in above terms with cost.

 

S.A.K./S-104/K Appeal accepted.

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